De Tocqueville or Disney? The Rehnquist Court's idea of federalism. .

• Author: Fino, Susan P.
• Position: Perspectives: Federal Jurisprudence, State Autonomy

Steven G. Calabresi succinctly identified the three elements of the Rehnquist Court's revision of constitutional federalism. The contemporary Supreme Court

is willing for the first time since 1937 to police the boundary lines of the congressionally enumerated powers over the regulation of commerce and the enforcement of the Fourteenth Amendment.... [T]he Court ... erected a firm Tenth Amendment barrier to congressional efforts to commandeer state legislatures and executive entities ... [and] expanded the doctrine of sovereign immunity so that it imposes a very high barrier to congressional efforts to expose states to private lawsuits either in federal or in state court. (1) While there is consensus on what the Rehnquist Court has done, there are many ideas on the reasons behind this renewed attention to federalism. Professor John O. McGinnis sees the Rehnquist Court's jurisprudence as a comprehensive and coherent effort to "invigorate[] decentralization and the private ordering of social norms that Alexis de Tocqueville celebrated in Democracy in America as being the essence of the social order generated by our original Constitution." (2) While the old Warren Court's mission was "empowering and perfecting democracy, particularly at the national level," (3) the Rehnquist Court is endeavoring to empower states and local governments to foster citizen engagement in politics and to curtail the deleterious influence of special interests. (4)

McGinnis and the Rehnquist Court see the Framers' federalism as a way of reinforcing social norms that arise from civil society by limiting the actions of the national government. For McGinnis, such an effort currently is required due to the extent to which special interests have come to dominate national domestic politics because a distracted public has become content to entertain itself with television and accept symbolic gestures from politicians as a substitute for public policy. (5) This sorry state of affairs is a product of over-centralized "mass democracy." (6) McGinnis musters evidence from "[m]odern political science" that seems to demonstrate that "mass national democracy often produces legislation that neither reflects majority will nor is efficient, since special interests dominate legislators while most citizens are rationally ignorant of the salient political issues." (7) The damage done to the polity by over-centralization can be partially undone by empowering private civic organizations and state and local government. According to de Tocqueville, McGinnis and the Rehnquist Court, civic organizations are an antidote to the mischief of faction. According to this formula, "civil associations organize to meet the common goals of their members," unlike political factions, which "try to use government coercion for their own ends." (8) "These civil associations have influence at the local level, making local government more responsive and contributory to a more public-spirited citizenry." (9) Moreover, the American federal system creates a marketplace in which local governments and state governments exist in competition with each other, which should drive them to deliver their public goods in the most efficient way. In this "'laboratory of democracy,"' the "successful experiments of yesterday become the effective public policy of tomorrow." (10)

How GOLDEN IS THE PAST?

If McGinnis is correct in his assessment of the Rehnquist Court's objectives, then the Court's solution to the twin problems of a disengaged citizenry and an unresponsive, faction-dominated government is a return to early eighteenth century America as chronicled by Alexis de Tocqueville. De Tocqueville noted that a centralized state "may contain subjects, [but] it has no citizens" because "the source of public virtue is dried up." (11) In the United States of the 1830s, however, "the interests of the country are everywhere kept in view," and each citizen "boasts of its success, to which he conceives to have contributed; and he rejoices in the general prosperity by which he profits." (12) If only civil associations and the state and local governments could be liberated from the controlling strings of Congress, then the nation might return to the values of an idyllic past and experience a republican revival.

There are at least two problems with setting the "Way Back" machine for the early nineteenth century such that we can learn important lessons from the past. As astute an observer as he was, de Tocqueville was not, and could not have been, a dispassionate chronicler of American life. The man was a French aristocrat of the nineteenth century and he viewed the United States from that perspective. Rogers Smith sees de Tocqueville's story of America as "deceptive" because it is centered on the experiences of "white men, largely of northern European ancestry ... analyzed via reference to categories derived from the hierarchy of political and economic statuses men have held in Europe." (13) Then, too, there is the question of whether de Tocqueville's observations are accurate and his conclusions correct. What follows is a single example of how de Tocqueville could have been wrong in some respects.

PARTICIPATORY DEMOCRACY

Antebellum America is seen by many as the golden age of participatory democracy. Grassroots democracy was everywhere in evidence. Depending on the time of year, a visitor to any American city or town could see party caucuses, nominating conventions, the active offices of the partisan press, and spectacles, such as torch light parades, in favor of one candidate or another. Such observations would have created the impression that almost every adult white male was actively and deeply engaged in politics. Was this phenomenon a result of the decentralized democracy reported by de Tocqueville? Perhaps not. Recent scholarship by historians has challenged this impression by examining evidence of the variety and extent of politic participation. (14) Turnout at local caucuses and nominating conventions was poor. Editors of the partisan newspapers publicly and frequently took their loyalists to task for their lack of commitment to the party's cause. When political activity did appear, it did not bubble up from below--rather, it was engineered from above by party operatives. Campaign events were sometimes indeed "energetic spectacle[s]" but most predominately in presidential election years. (15) Such spectacles were choreographed for maximum visual effect and entertainment value. It is not surprising that people turned out in droves to see a hot-air balloon ascension followed by a torchlight parade of men in fancy uniforms, marching to the tunes of a brass band. (16) Voter turnout was high, but there is a serious question of whether the turnout was a function of an individual's innate sense of civic duty, or, facilitation by party vigilance committees who lured voters to the polls with "treat[s]." (17)

If these historians paint an accurate picture, then the average voter of de Tocqueville's past shares much with the average voter of today. The key difference is the state of the political parties. The parties today are weak and do not induce strong feelings of support from their nominal members. Candidates for public office nominate themselves and run campaigns with their own themes and strategies. The political parties exist in what political scientists call a service role for the candidates. The parties of the nineteenth century were vigorous organizations that recruited candidates, ran campaigns, and marshaled voter turnout. The political party, an example of the dreaded faction, was primarily responsible for what appeared to be the spontaneous political engagement observed by some historians.

LABORATORIES OF DEMOCRACY AND EFFICIENCY

In de Tocqueville's day, state and local governments were free to experiment with policy as laboratories of democracies because the United States had yet to become an over-centralized mass democracy. Ideally, as the results of the experiments became known, good policies would be adopted, and bad ones would be discarded. The competition among the states would then result in economically efficient policies.

There is evidence, however, that when state and local governments competed with each other, the results were far from beneficial and efficient. In 1837, the United States entered into a severe economic depression that lasted until at least 1843. The chief cause of this calamity was the accumulation of massive public and private debt. One engine of debt generation was a "mania" for state-sponsored internal improvements. (18) The "orgy of canal and railroad building and of bank organization" was spurred by New York's success with the Erie Canal in 1817. (19) States sought to replicate the New York success story and borrowed money to fund these internal improvements. Just as the federal government was extinguishing its debt, the states were piling up a debt on the order of $200 million. (20) The investments in canals, railroads, and banks much more often than not lost money, despite the promises of extravagant returns. (21) By the 1840s, some states defaulted on interest payments and one state, Michigan, defaulted on the principal. (22) The experience in the states was so negative that numerous prohibitions and constitutional restrictions on internal improvements were instituted beginning in the 1850s...