To Make a Nation: The Rediscovery of American Federalism.

Author:Chemerinsky, Erwin

By Samuel H. Beer. Cambridge: Harvard University Press. 1993. Pp. xxi, 474. $29.95.

Historically, federalism has appeared in political debate primarily as an argument to support conservative causes. During the early nineteenth century, for example, John Calhoun argued that states had independent sovereignty and could interpose their authority between the federal government and the people to nullify federal actions restricting slavery (p. 224). Similarly, during Reconstruction, southern states claimed that the federal military presence was incompatible with state sovereignty and federalism.(1)

In the early twentieth century, opponents of federal legislation successfully used federalism as the basis for challenging laws regulating child labor, imposing the minimum wage, and protecting consumers.(2) During the Depression, conservatives objected to many of President Franklin Roosevelt's proposals, such as social security, on the ground that they usurped functions properly left to state governments.(3)

During the 1950s and 1960s, those objecting to federal civil rights efforts phrased their protests primarily in terms of federalism. Southerners challenged Supreme Court decisions mandating desegregation and objected to proposed federal civil rights legislation by resurrecting the arguments of John Calhoun. Proponents defended segregation and discrimination less on the grounds that they were desirable practices and more in terms of the states' rights to choose their own laws concerning race relations.(4)

In the 1980s, President Ronald Reagan proclaimed a "new federalism" as the basis for attempting to dismantle federal social welfare programs (p. 2). In his first presidential inaugural address, President Reagan said that he sought to "restor[e] the balance between . . . levels of government."(5) His administration thus employed federalism as its rationale for cutting back on countless federal programs.

Hindsight reveals that federalism has primarily been an argument conservatives have used to resist progressive federal efforts, especially in the areas of civil rights and social welfare. There is, of course, nothing inherent in federalism that makes it conservative. In recent years, for example, prominent liberals, such as Justice William Brennan, have argued that there should be more use of state constitutions to protect individual liberties.(6)

What is striking, however, about the historical use of federalism arguments is that the discussions are very much value-laden. Advocates debate important issues of national policy in terms of the proper allocation of power between the federal and state governments.

Yet, each year as I teach constitutional law and specifically the material about federalism, I am struck by the absence of discussion about underlying values in the material. Supreme Court decisions about federalism rarely do more than offer slogans about the importance of autonomous state governments. Occasionally, the Court will mention that states are important as laboratories of ideas or that state governments are crucial as a check on the tyranny of the national political government.(7) Never, though, is there much elaboration of the values of federalism, and rarely is there any explanation of how the values of federalism relate to the Court's holdings. For example, in its 1992 decision in New York v. United States,(8) the Supreme Court relied on federalism and the Tenth Amendment to invalidate a provision of federal law.(9) Yet the Court provided little discussion about why a federal statute requiring states to dispose safely of nuclear wastes undermined important values of federalism.

Indeed, I believe that, of all of the areas of constitutional law, it is in discussions about federalism that the underlying values are least discussed and most disconnected from the legal doctrines. In separation-of-powers cases, courts frequently give explicit consideration to the tension between accountability and flexibility.(10) In dormant commerce clause cases, courts often weigh the importance of a national market economy unrestricted by protectionist state laws.(11) In equal protection cases, courts eloquently speak of the need for racial and gender equality.(12) In procedural due process cases, courts identify and expressly balance the underlying values of accurate decisionmaking, individual interests, and government efficiency.(13) In freedom of speech cases, courts constantly discuss the value of expression and the dangers of government censorship.(14) But where in federalism cases is there any careful exploration of why state autonomy matters and how specific federal actions undermine it?

In fact, post-1937 Supreme Court decisions concerning federalism have been paradoxical. The Supreme Court has aggressively used federalism as the basis for limiting federal judicial power, but has almost completely refused to employ federalism to limit federal legislative power. This approach to federalism persisted almost unchanged for fifty-five years, from 1937 until 1992, with the Court declaring only one federal statute unconstitutional on federalism grounds, and that case -- National League of Cities v. Usery -- the Court later expressly overruled.(15) During this same period, however, the Court has frequently used federalism as the basis for limiting federal judicial power -- for example, by requiring abstention,(16) expanding the scope of the Eleventh Amendment and state immunity to federal court litigation,(17) and limiting the scope of federal habeas corpus review.(18)

I sketch this history because it is only against this backdrop that one can evaluate Professor Samuel H. Beer's(19) new book on federalism. Beer's central thesis is that history supports expansive national powers and refutes the view that states retain substantial sovereignty. In a brilliant exploration of history, starting with Thomas Aquinas and continuing through the Framers' views, Beer seeks to demonstrate that federalism need not be viewed solely as a conservative or regressive concept. Quite the contrary, Beer's express goal is to "rediscover" federalism as a source for progress and for the protection of individual rights. There is no doubt that Beer has made a major contribution to the literature on the subject.

Whether Beer succeeds, however, depends on how his audience views his goal. If one reads his book looking to gain a better understanding of the origins of American federalism, the book is a tremendous success. It is clearly written, impeccably documented, and extremely persuasive. Moreover, if one wants to refute conservatives' claims that the origins of the doctrine justify their view of federalism, Beer's book is invaluable.

On the other hand, Beer's book is much less helpful if one is looking for insights as to how political and legal analysts have actually used federalism since 1787. The introductory chapter sketches a brief history of federalism since the Constitutional Convention, focusing on issues raised by slavery, by the industrial revolution, and by the civil rights movement (pp. 8-20). Beyond that, however, and the discussion of the values of federalism in the last chapter (pp. 382-92), the book's focus is entirely historical. Thus, Beer's book is of limited benefit for approaching the issues specific to federalism that will confront government in the future. Rather, it is almost entirely about the intellectual foundations of federalism prior to the beginning of American government.

Generally, it would be unfair to criticize a work of history for not being "relevant" to later issues. However, Beer invites this reaction with his preface and first chapter. There he begins by quoting Ronald Reagan's view of federalism as American government being a compact among the states (p. 2). In large part, the book is a thorough -- indeed, brilliant -- refutation of that view based on the historical origins of federalism.

Yet, I question whether one can challenge a contemporary view solely based on historical evidence. Two hundred years of American experience are far more important in understanding the content of...

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