ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE: A HISTORICAL INQUIRY
by Edward A. Purcell, Jr. New Haven: Yale University Press, 2007. 320pp. Cloth $45.00. ISBN: 9780300122039.
Reviewed by Justin Crowe, Department of Politics, Pomona College. Email: justin.crowe [at] pomona.edu.
In reflecting on the proposed Constitution in FEDERALIST 39, Publius concluded that it was “in strictness, neither a national nor a federal Constitution, but a composition of both.” Though he preceded this statement by exploring the ways in which five different aspects of the Constitution – its foundation; the sources, operation, and extent of the powers it granted to the government; the mode of introducing amendments – were either “federal” or “national,” Publius did not, in either FEDERALIST 39 or elsewhere in his advocacy of ratification, detail the exact contours of a constitutional system that was both federal and national. He did not, that is to say, prescribe a specific relationship between state governments and the national government or establish a precise line at which the authority of one level of government ended and the other began.
The absence of clear answers in either Publius’s writings or the Constitution itself provokes several queries. What is the constitutional balance of federal and state authority? What did the Founders originally believe it to be? What did they hope to accomplish by constructing a “compound republic”? What did they actually accomplish? With these sorts of questions as his guide, Edward Purcell offers a “historical inquiry” into the original meaning (or lack thereof) and consequences of federalism as a structural feature of American constitutionalism. Weaving together meticulous historical research, deft analysis of political thought, and wide-ranging exploration of political development, Purcell demonstrates – in clear and methodical prose – how the Constitution “neither gave the federal structure any proper shape as an operating system of government nor mandated any particular and timeless balance among its components” (p.7). Far from having a fixed balance that must be politically recovered and jurisprudentially protected, federalism, Purcell contends, is instead characterized by an “elasticity and dynamism” (p.6) that belies any attempt to articulate the “true,” “proper,” or “original” understanding of the balance between state and national power.
Purcell’s “inquiry,” as he likes to call it, consists of two distinct parts preceded by an introductory chapter to frame the debate and a concluding chapter to synthesize lessons learned. Part I (Chapters 2-5) focuses on what Purcell terms the “structural intrinsics” of American federalism – on the defining characteristics of the vertical division of governmental power at the Founding. Part II (Chapters 6-9) examines the “consequential dynamics” of American federalism – the evolution of and types of politics produced by the federal structure. Together, these two halves of [*775] the book do more than simply illuminate both the theory and practice of federalism; they challenge the application of a leading constitutional theory and fundamentally reinterpret the meaning and history of a core structural pillar of American government.
Each of the four chapters in Part I explicates a different facet of the original federal structure. Chapter 2 details how federalism was “doubly-blurred” – both “ambivalent” in that it provided states and the national government with overlapping powers and “ambiguous” in that it lacked clear boundaries between different levels of government. Chapter 3 explains how it was “fractionated,” characterized by “many-sided and multi-linked” (p.10) relationships rather than a strict binary division between national and sub-national authorities. Chapter 4 describes how Founding-era federalism was “instrumentalist” in the sense that it was consciously designed to achieve certain desirable outcomes (self-government, protection of individual rights) and prevent against objectionable ones (the triumph of private over public interest, abuse of power). Chapter 5 depicts the federal structure as “contingent” upon constitutional provisions either designed to ensure governmental evolution (elections, a decennial census, the possibility of constitutional amendments) or requiring pragmatic adaptation in order to be satisfied. Thus, Purcell’s overall conception of federalism is as a structure rife with “ambiguities and elasticities” and composed of “dynamic and interlocking parts, all of which were themselves both mutable and manipulable” (p.12).
Each of the four chapters in Part II, which I found both more intriguing and slightly less focused on the subject of federalism than the chapters in Part I, explores a different outcome that resulted from the doubly-blind, fractionated, instrumentalist, and contingent character of the original federal structure. Chapter 6 discusses the “kaleidoscopic” politics – the volatile and shifting sets of alliances between states, within states, between states and the national government, and between states and private organizations – that emerged in the early republic and continue to animate American government today. Chapter 7 outlines the ways in which a flexible federal structure enabled and encouraged the continual “readjustment” of the institutional components of American politics and a continual renegotiation of their relationships to one another. Chapter 8 addresses the implications of the Constitution’s failure to identify exactly how disputes between “contested authorities” would be resolved, emphasizing in large part the different roles played by the Supreme Court in adjudicating between state and nation. Chapter 9 considers the “evolving understandings” of both the values of federalism (protecting liberties, allowing the states to act as laboratories of democracies, deferring to local values and interest) and the nature of federalism (cooperative, dual, competitive, coercive). By the end of Part II, the reader has an intimate sense of not only how the federal structure was conceived at the founding but also how it changed – how it strengthened and weakened, how it was modified and transformed – over the course of American history. Federalism, Purcell makes clear, was dynamic in both theory and practice. [*776]
Though Chapters 5-9 seem to cohere somewhat less effectively than Chapters 2-4, the fusion of the more political thought-oriented treatment of Part I and the more political development-oriented treatment of Part II makes ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE a unique and intellectually stimulating book. Chief among its many virtues is the fact that, although revolving primarily around the political thought of the late eighteenth century, it speaks to topics of contemporary relevance and importance. Between the attempts (some successful, some failed) by Republican presidents Richard Nixon, Gerald Ford, Ronald Reagan, and George H.W. Bush to shrink the size of the federal government and devolve greater responsibility back to the states (Conlan 1998); the Rehnquist Court’s “federalism offensive” (Whittington 2001; Pickerill and Clayton 2004); and the recent conservative successes in law and politics (Rosen 2005; Teles 2008), questions involving originalism and (especially) federalism are not simply quaint and abstract questions of legal history. Though Purcell might have gone to greater lengths to illustrate the connections between the primary subjects of his inquiry and these late twentieth century and early twenty-first century political dynamics more explicitly, it is clear from the opening page that he has them in mind and clear by the closing page that his historical work speaks directly to them.
In addition to its relevance, albeit sometimes indirect, to present-day politics, ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE excels in at least three other realms. First, it provides for federalism, often misunderstood (especially by students!) as fixed and archaic, something akin to what Richard Neustadt’s famous aphorism – that American government was one of “separated institutions sharing powers” (Neustadt 1990) – provided for the separation of powers: a call for understanding structural features of American government as contested, dynamic, and perpetually evolving. In this way, the book suggests that the relationship between state governments and the national government is characterized by the same type of rich and volatile politics as the relationship between branches of the national government itself.
Second, as befitting historical work that seeks to inform current political and legal practice, ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE is simultaneously bursting with primary sources and embedded within secondary literature from a range of academic disciplines. From the records of the Philadelphia Convention to THE FEDERALIST to the proceedings of state ratifying conventions, Purcell marshals an impressive array of original research to illustrate the diversity of opinion about federalism at the Founding. In terms of secondary literature, he engages the work of historians, legal academics, and political scientists not only on federalism specifically but also on constitutional law, political thought, and political development more generally. The result is a piece of historical scholarship that is immersed in the period under consideration yet also attuned to [*777] theoretical insights and empirical analyses from a variety of intellectual traditions.
Third, ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE, is explicit about what it is doing and what it is not doing, even if what it is doing grows dense at points. Purcell cogently and concisely walks the reader through his argument, unpacking the complexities surrounding his subject, bringing new evidence and analysis to bear on those complexities, and helping his audience to gain a more comprehensive perspective on the ideas and debates he analyzes. Moreover, at virtually every stage of the book, he supplies a clear roadmap for where his argument is headed, numbering the points he intends to make and then making them without (for the most part) legal jargon or needless detail. Given that federalism is a subject many find difficult and dry, attempting to write an accessible and lively book on it is no small task, and succeeding (as Purcell does) no small accomplishment.
Of course, ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE is not without warts. Most crucially, the book fails to engage originalist constitutional theory – or theories (Whittington 2004) – in any meaningful sense. Although it attempts to use federalism as a way to show the weakness of originalism as a mode of constitutional interpretation, it does not contemplate how originalists such as Randy Barnett (2004) and Keith Whittington (1999) might deal with some of the challenges it identifies. Obviously, Purcell is not responsible for making originalists’ claims for them, but, as a skeptic of their approach, he should at least make the reader aware of – and have his own retort to – their counterarguments. Yet beyond introductory and concluding chapter criticism of the Rehnquist Court’s “Federalism Five” (Rehnquist, O’Connor, Scalia, Kennedy, and Thomas), a group of justices that is far from a unified originalist cabal, Purcell presents little sustained and direct criticism of originalism per se. Even if originalism is, as I suspect, less the target of his inquiry than federalism, its central place in the book means it nonetheless deserves more extensive analysis.
Less significantly, even if Purcell regards them as unimportant, the absence of a serious discussion about either the Tenth Amendment (which receives one paragraph of analysis on page 31) or the Eleventh Amendment (which receives only a passing mention on page 51) seems odd. The problem is not that, by excluding the Tenth and Eleventh Amendments from his analysis of the Founding-era understanding of the federal structure, Purcell necessarily biases his conclusions; rather, it is that the concepts of reserved powers and state sovereign immunity that emerge from those amendments are presumably relevant considerations in any attempt to capture the character and meaning of federalism.
These concerns aside, ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE is a provocative and erudite analysis of the historical roots and developmental trajectory of American federalism. Accordingly, it [*778] should be of substantial interest to scholars of the Founding, of federalism, and of constitutional history generally. Although the book is probably too sophisticated for the basic undergraduate constitutional law course, it could fit seamlessly in graduate courses – whether in history, law, or political science – on structures of power or legal and constitutional thought and development. Whatever its audience, Purcell’s ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE should prompt discussion and disagreement about the past, present, and future of the compound republic. Given his agreement with James Wilson’s contention that implementing a system of divided powers would “be accompanied with much difficulty” (p.30), I cannot imagine Purcell would expect – or desire – anything less.
Barnett, Randy E. 2003. RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY. Princeton: Princeton University Press.
Conlan, Timothy J. 1998. FROM NEW FEDERALISM TO DEVOLUTION. Washington: Brookings Institution Press.
Neustadt, Richard E. 1990. PRESIDENTIAL POWER AND THE MODERN PRESIDENTS. New York: The Free Press.
Pickerill, J. Mitchell and Cornell W. Clayton. 2004. “The Rehnquist Court and the Political Dynamics of Federalism.” 2 PERSPECTIVES ON POLITICS 233-248.
Rosen, Jeffrey. 2005. “The Unregulated Offensive.” THE NEW YORK TIMES MAGAZINE (April 17) 42-49, 66, 128, 130.
Teles, Steven M. 2008. THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT. Princeton: Princeton University Press.
Whittington, Keith E. 1999. CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW. Lawrence: University Press of Kansas.
Whittington, Keith E. 2001. “Taking What They Give Us.” 51 DUKE LAW JOURNAL 477-521.
Whittington, Keith E. 2004. “The New Originalism.” 2 GEORGETOWN JOURNAL OF LAW AND PUBLIC POLICY 599-613.
© Copyright 2008 by the author, Justin Crowe.
Labels: Vol. 18 No.9