The Ideological Origins of American Federalism.

AuthorChafetz, Josh
PositionBook review

The Ideological Origins of American Federalism

BYALISON L. LACROIX

CAMBRIDGE, MA: HARVARD UNIVERSITY PRESS, 2010, PP. 312. S35.00.

REVIEW CONTENTS I. FROM THE STAMP ACT TO THE CONSTITUTION II. THE CONSTITUTION AND THE JUDICIAL TURN A. The Supremacy Clause B. Federalism in Political Equipoise C. The Judiciary Acts--and Beyond 1. The Judiciary Acts 2. The Bank 3. The Kentucky and Virginia Resolutions III. BRINGING MULTIPLICITY INTO THE SEPARATION OF POWERS A. Three Cases of Separation-of-Powers Multiplicity 1. Jefferson's Summary View 2. Senate Confirmation of Judges 3. Contempt of Congress by Executive Branch Officials B. Toward a Theory of Separation-of-Powers Multiplicity CONCLUSION Federalism in the American Constitution is too often treated as a virgin birth--as "the unique contribution of the Framers to political science and political theory," (1) in Justice Kennedy's words. But federalism did not spring forth fully formed from the Constitutional Convention. Alison LaCroix has done constitutional scholarship a great service, then, by providing us with an ideological history of federalism--that is, a history that demonstrates that federalism has "a before and an after, like all intellectual artifacts." (2) In tracing the before, LaCroix's erudite new book helps us make sense of what came after.

But as LaCroix traces the intellectual artifact--the "federal idea," as she terms it (3)--her institutional focus inexplicably narrows. By focusing on the judiciary alone, she misses not only some key aspects of federalism in the constitutional order and in early republican politics, but also some of the ways in which her understanding of American constitutional development ramifies outside of the sphere of federalism. In this Review, I suggest how these deficiencies can be rectified and how LaCroix's provocative discussion of governmental multiplicity can be expanded to the separation-of-powers context.

LaCroix defines the federal idea as the "belief that multiple independent levels of government could legitimately exist within a single polity, and that such an arrangement was not a defect to be lamented but a virtue to be celebrated." (4) Her most compelling work--comprising the bulk of her book--is spent tracing the development of this idea from the controversy over the 1765 Stamp Act to the recognition that the Articles of Confederation were inadequate to govern the new nation. Part I of this Review briefly recounts LaCroix's prehistory of federalism in the Constitution.

This Review parts ways with LaCroix, however, when she arrives at the Constitution itself. LaCroix reads the Constitutional Convention's rejection of Madison's proposal to give Congress a veto over state laws, combined with the Convention's adoption of the Supremacy Clause, as a decision for judicial supremacy as the institutional means of operationalizing federalism. She then argues that the debates over the scope of federal jurisdiction in the Judiciary Acts of 1789 and 1801 further demonstrate this judicial turn. Part II of this Review takes issue with these claims, suggesting that the focus on the judiciary is an artifact of LaCroix's choice of evidence rather than an accurate reflection of the constitutional debates between 1787 and 1801. In highlighting some aspects of the debate that LaCroix overlooks, this Part argues that the political branches were meant to play at least as significant a role as the judiciary in the operation of the federal system.

Part III suggests that LaCroix's court-centric view is especially unfortunate because the idea of multiplicity has quite a bit to offer to our understanding of the separation of powers. This Part begins to develop a theory of multiplicity in the separation-of-powers context, focusing on the ways in which constitutional politics affects not only the resolution of substantive issues but also the institutional site at which those issues are resolved.

  1. FROM THE STAMP ACT TO THE CONSTITUTION

    LaCroix's most significant contribution to federalism scholarship lies in her tracing of the origins of the "federal idea" in constitutional prehistory. She shows that, beginning with the reaction to the Stamp Act of 1765, the colonists sought to reconceptualize the nature of the transatlantic constitution of the British Empire. (5) Since the Glorious Revolution of 1688-89, imperial constitutional theory had been built upon two pillars: (1) the idea that imperium in imperio is a constitutional solecism (6)--that is, that there could only be one sovereign in a given geographical area--and (2) parliamentary sovereignty, or the idea that the word of the Monarch-in-Parliament was law and nothing could check it. (7) Combined, these two principles meant that Parliament in London had absolute authority over the American colonists and their elected assemblies across all matters of politics.

    But this metropolitan constitutional theory stood in some tension with the lived constitution of the colonists in the 1760s. In their day-to-day lives, they operated "within the regulatory ambit of both a colonial parliament and the metropolitan Parliament." (8) The simultaneous existence of theoretical unity and lived multiplicity was necessarily unstable, and it was the Stamp Act--which the colonists perceived as interfering in their internal affairs in an unprecedented way (9)--that caused a collision.

    LaCroix demonstrates that, beginning with the Stamp Act controversy, the colonists started to engage with the metropolitans on the level of theory. That is, they began developing theories to provide a normative justification for multiplicity in governmental authority. (10) Of course, there was no single colonial conception of multiplicity, but LaCroix identifies two core elements of the nascent federal idea: "first, structuring a government to include multiple levels of authority; and second, dividing that authority along subject-specific lines." (11)

    One of the great virtues of LaCroix's ideological approach is that it resists forcing a simple linear narrative onto the development of the federal idea. Instead, her subtle and textured account charts the various strands of argument surrounding the development of the federal idea on both sides of the Atlantic through the constitutional debates of the tumultuous 1760s and early 1770s. (12) Especially enlightening is her description of the 1773 debate between Governor Thomas Hutchinson and the Massachusetts General Court over the nature of sovereignty. (13)

    The common thread running through these disparate engagements--what made them part of a single overarching debate--was their "experiment[ation] with subject-matter divisions as one means of rationalizing and formalizing multiplicity." (14) Central to all of them was an attempt to carve out room for self-government, a way for the colonists, while remaining within the British Empire, to govern themselves, free of metropolitan oversight. In short, the constitutional crisis precipitated by the Stamp Act forced the colonists to begin articulating what had previously been unspoken assumptions about how they were to be governed--or, in LaCroix's elegant phrasing, it began to turn "the practice of living with divided authority.., into an ideology of multiplicity." (15)

    Metropolitan theories of sovereignty held fast, however; London would brook no competing sources of authority. And so the Revolution came, and suddenly it was up to the (former) colonists themselves to figure out how to divide power in practice. The Articles of Confederation established "the leanest possible union" (16) and were created as part of "a strategy for resistance and defense." (17) Little wonder, then, that while they instantiated the "governmental multiplicity for which American whigs had argued since the Stamp Act debates," (18) they were distinctly undertheorized. Worse, they proved unequal to the task of establishing a lasting union.

  2. THE CONSTITUTION AND THE JUDICIAL TURN

    1. The Supremacy Clause

      It fell to the Founders of 1787 to theorize and systematize the federal idea as it had been developing organically since 1765. (19) In LaCroix's telling, the Constitution's drafters, concerned as they were to maintain a greater level of centralized authority than had existed under the Articles of Confederation, had two choices, both modeled after powers wielded over the colonies by the Privy Council in the name of the Crown.

      In one camp stood James Madison, who wanted to give the Federal Congress the authority to veto state laws, just as the Privy Council had the authority to allow or disapprove a colonial legislative act. (20) Madison insisted that the problem with the Privy Council had not been the fact of legislative review but rather the fact that colonial and metropolitan interests were not aligned, so that the reviewing power was exercised in the service of substantive values that were distasteful or oppressive to the colonists. (21) The solution, for Madison, was to keep legislative review but to design institutions that ensured that the central government respected the interests of the states. (22) The Virginia Plan thus "embraced the federal negative" (23) in its sixth article, which provided the "National Legislature" with the authority to "negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union." (24) Madison himself supported an even stronger federal negative--he seconded Charles Pinckney's motion to expand the negative from unconstitutional laws to any laws that Congress "shd. judge to be improper." (25)

      But this smelled too much of empire to the other delegates. Elbridge Gerry declared that "[t]he Natl. Legislature with such a power may enslave the States," (26) and Gunning Bedford of Delaware noted "the smallness of his own State which may be injured at pleasure without redress" under Virginia's proposal. (27) Pierce Butler of South Carolina worried that the negative...

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