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How the noisy debate over states' rights distorts history and the intent of federalism

Guest Blogger

Federalism is a founding principle and aspiration of American society. But the cry of states’ rights has come to mean something quite different today from how it was originally intended. Alison L. LaCroix, an assistant professor of law at the University of Chicago Law School, explores the history of the notion in “The Ideological Origins of American Federalism,” which has just been published by Harvard University Press. Here she looks at today’s debates through the prism of history and finds that the battlelines are often drawn on faulty premises.

By Alison L. LaCroix

Federalism today is front-page news. The passage of the health care reform bill immediately spawned lawsuits by states attorneys general suing to halt its implementation. The financial stimulus package prompted several governors to vow that they would reject federal funds. Congressional anti-drug regulation has been met in a number of states with the legalization of medical marijuana.

In short, the cry of states’ rights has returned to political debate. And each of these controversies brings the obligatory references to such historical touchstones as the New Deal, the Civil War, and even South Carolina’s 1832 effort to nullify federal law.

But states’ rights does not begin to capture the real essence of federalism, and references to historical moments as mere data points obscure the degree to which early understandings of federalism can help to inform current debates.

One of the most intriguing – and maddening – aspects of the idea of federalism is its apparent neutrality, its ability to stand in for whatever particular view one has about the proper structure of governmental authority in the United States. Even within the pages of the Supreme Court’s cases, one can find federalist decisions that strike down state monopolies on ferryboat traffic in New York Harbor as well as new federalist decisions that protect the states’ traditional spheres of authority over matters as diverse as domestic violence and medical licensing.

In some sense, then, Thomas Jefferson had it right when, in his 1801 inaugural address, he insisted that “we are all republicans, we are all federalists.” Even today, we are all federalists – but we don’t all have the same idea of what federalism means.

History is helpful here. For one thing, the history of federalism shows us that federalism is not just a contentless slogan to be trotted out by the party that happens to be out of power at the national level.

On the contrary: in debates from the colonial period through the early nineteenth century, Americans of all political stripes were deeply invested in the project of figuring out just what the federal idea meant. At the time of the Revolutionary War, federalism was about resisting legal and political control by the British Empire. By the early national period, federalism had become a theory of multiplicity -- overlapping layers of government in which the goal was the overlap itself.

In today’s controversies about federalism, participants on all sides seem focused only on who wins in any given showdown between the states and the national government. Indeed, the debate is nearly always framed in terms of a binary confrontation: either (reformist/sclerotic) Washington wins, or the (righteous/parochial) states win.

In contrast, early federal theorists such as Jefferson, John Adams, and John Marshall were willing to postpone the ultimate “who wins” question. This is not to say that each of these members of the founding generation did not have a view as to whether the national or the state government should prevail (they did), but that the background principle of multilayered governmental authority was at least as important to them as the zero-sum regulation/no regulation dynamic that so often underpins current discussions. The founders’ emphasis on multiplicity stemmed in part from their resistance to the unitary authority of the British Parliament and then developed into an affirmative theory of governmental structure for a diverse and far-flung republic.

The history of federalism’s emergence, first in the American colonies and then in the United States, shows that the current debates are not just intellectually impoverished but actually wrong – 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. The only incorrect vision of federalism is one that assumes that a single correct vision is possible.

By Steven E. Levingston  |  March 25, 2010; 5:30 AM ET
Categories:  Guest Blogger  | Tags: states' rights debate; battle over states' rights; issues of federalism  
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Fear of "states' rights" is only brought to bear when it is conservative states resisting something that a liberal federal government is trying to do.

No one in the press invokes the specter of "states' rights" as a bad thing when liberal states challenge conservative federal policies regarding such things as medical marijuana, assisted suicide, or gay marriage.

Posted by: tomtildrum | March 25, 2010 1:18 PM | Report abuse

Tom is so right. Funny how the far right is all about 'states rights' but then have no problem supporting the Defense of Marriage Act which is one of the biggest federal takeover of states rights in decades.

Until they fight hard to overturn DOMA they have no credibility.

Posted by: Hillman1 | March 25, 2010 1:35 PM | Report abuse

I find it almost amusing that there is debate over Federalism vs. states rights. I think we had a pretty vigorous "debate" over the issue between 1861 and 1865 and, as I recall, the "states rights" side lost pretty darned decisively. Virginia Attorney General Cuccinelli and others beating this drum should take a look at some photos of Richmond in Spring 1865. It wasn't pretty.

Posted by: jhpurdy | March 25, 2010 2:35 PM | Report abuse

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Posted by: mmmitkonlyyou | March 26, 2010 11:10 AM | Report abuse

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