Federalism: A Work In Progress

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By Alison L. LaCroix, Assistant Professor of Law, The University of Chicago Law School.

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Federalism is frequently regarded as one of the signal American contributions to the modern science of politics. Today, however, it is at once everywhere and nowhere in American constitutional and political discussions. Current debates over issues as diverse as the healthcare bill, the economic stimulus package, abortion, and medical marijuana - not to mention the emergence of the Tea Party, with its cry of "states' rights" - confirm this suspicion. Most Americans routinely employ the word "federal" to refer to a federal case, federal law, the actions of a federal prosecutor, or to the federal government itself. But what exactly does the term "federal" mean, and how did it come to have that meaning?

For decades, historians and constitutional scholars have been engaged in a quest to understand the legal and political worldview on which the United States was founded. Liberalism, republicanism, popular sovereignty, commonwealth - each of these notions has contributed valuable insights into the conceptual and practical framework that underpinned the nation's founding and that continues to inform American political philosophy and public life.

Federalism must be added to this list as a foundational idea of American law and politics. The rise of American federalism in the second half of the eighteenth century should be understood as an ideological development - and, indeed, as one of the most important ideological developments of the period. Thus, it was not simply a matter of political expedience or an institutional cover for economic interests. The core of this new federal ideology was a 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. By the early national period, federalism had become a theory of multiplicity - overlapping layers of government in which the goal was the overlap itself.

Like judicial review - another "meta-constitutional" value - federalism's origins are typically traced to the drafting of the Constitution, despite the lack of any explicit reference to either concept in the document itself. To be sure, a set of ideas about government that would later be called "federalism" began to coalesce at the Constitutional Convention, conjured into action by the exigencies of a fraying confederation and the combined force of fifty-five creative minds. The product of these imperatives was not only a constitutional doctrine but rather an entire philosophy of government.

Indeed, in the late eighteenth century, the new federal ideology rapidly became identified with the fledgling nation itself. More than a mere doctrine, the belief in multiplicity, overlap, and concurrence became a foundational principle of the American political enterprise. "Federal" and "republic" were the nation's twin attributes, terms so resonant that they were obvious choices for the names of the country's first political parties. From its origins in a disconnected set of pre-Revolutionary arguments about the relative powers of Parliament and the colonial legislatures to regulate colonial affairs, the federal conception of divided authority became necessary to the republic itself.

A normative vision of divided sovereignty therefore predated, or at the very least accompanied, the popular sovereignty and republicanism that scholars have placed at the center of the political and legal changes that occurred during the Revolutionary and founding periods. This vision of American government as designed to be divided clearly began as a response to the eighteenth-century Anglo-American fear of imperium in imperio, or dominion within dominion. By the early nineteenth century, this commitment to divided government, and the difficulties of building institutions to instantiate that theoretical commitment, had become the central question of American law and politics.

In their recent book Sixty Million Frenchmen Can't Be Wrong, Jean-Benôit Nadeau and Julie Barlow report an exchange with a Parisian deputy mayor who lamented the city's powerlessness to crack down on dog owners who left their pets' unmentionables on the public sidewalks. Fines issued by security guards had proved ineffective. Why, the authors asked, did the police not intervene? Because, the deputy mayor told them, the Police Nationale - the only official police force - declined to enforce anti-dog-refuse policies. Why, then, did the city of Paris not set up its own police force? "The government won't allow it," the deputy mayor replied. "The Police Nationale is the police in Paris. The city of Paris can't even make its own bylaws for security, traffic, or sanitation." Nadeau and Barlow cite this exchange as evidence of the French state's distrust of local power and fundamental commitment to unitary governmental authority.

As this counterexample demonstrates, federalism today is neither necessary nor natural; nor, in the eighteenth century, was it a mere application of a preexisting and preferred model of government. Federal thought has always contained within it a commitment to the division of governmental powers. It may be tempting to view current political and legal debates through the lens of state-versus-federal power, but these issues are in fact the contemporary incarnation of the bigger, deliberately unsolved question of how governmental authority is to be divided between polities - and which institutional actors will get to make that determination.

The history of American federalism demonstrates that current debates are both intellectually impoverished and sometimes even misinformed - certainly when they appeal to history, and more broadly in the way they frame the relevant choices. Federalism is and has always been a commitment, a background characteristic of the nation, and a work in progress, not a final answer. Cries of "states' rights" miss the point, as do (less frequent) calls for treating the states as mere subdivisions of a national sovereign.