Alison L. LaCroix, The Ideological Origins of American Federalism (Harvard University Press, 2010) 314 pages, $35
A clamor about states’ rights and federalism currently suffuses the media, often in the context of the Patient Protection and Affordable Care Act and states’ attempts to challenge the constitutionality of this legislation. These challenges use the term federalism to describe a bilateral political system whereby the states, as the assumed arbiter of good small government, should be protected from the national government’s assumed overreaching. Alison LaCroix’s The Ideological Origins of American Federalism shows why these debates are wrongly framed and why federalism’s intellectual roots demand that federal structure be understood as much more than a war cry for states’ rights. Many seem to conflate history or historical study with originalism, but the two are clearly different projects. This book mines colonial history to understand federalism as a core structure with intellectual pedigree, but those searching for an originalist bent should probably look elsewhere. On the other hand, anyone who wants to understand the structure and meaning of Our Federalism would be well served by taking the time to read Professor LaCroix’s book.
The history begins by studying the work of eighteenth century theorists to gain understanding of the intellectual and political debates surrounding “imperium in imperio,” literally the “dominion within the dominion.” Though some believed that autonomous sub-government with substantive power within the larger imperial government was undesirable, it was also a structure that existed within the British Empire. The early political theories of the empire and of Parliament’s legislative dominance formed a unique foundation for American politics. This account conveys that colonial thinkers did not inherently have a problem with the king as sovereign over the colonies, or with Parliament as having legislative power over empire-wide concerns, but they also believed that the colonies should be able to govern themselves as to local matters. The parallels between this colonial system and the soon-to-be formed American federal structure are clear.
The heart of the book is the discussion of James Madison’s ideas regarding the need for the national legislature to negate state laws in order to protect the coherence and power of the national government. Madison apparently believed that Congress should be able to reverse state laws that contradicted federal efforts, similar to the role of Parliament in the Privy Council (a monarchical authority that reviewed colonial legislative and judicial acts), an idea LaCroix refers to as “Madison’s negative” or the “federal negative.” (138) Madison was determined to ensure that the central government would not fail and could not be torn apart by the states, but others were not convinced that the federal negative was the proper route to ensuring state compliance. However, as LaCroix describes it, the Privy Council had both legislative and judicial functions from which the prior colonists could learn. Thus, the lawyer Thomas Jefferson’s compromise was to emphasize the power of judicial review through strong language in the Supremacy Clause and the concomitant structure of Article III courts, which were essentially an American invention.