Originalism, Federalism, and the American Constitutional Enterprise

Originalism, Federalism, and the American Constitutional Enterprise: A Historical Inquiry

Edward A. Purcell
Copyright Date: 2007
Published by: Yale University Press
Pages: 320
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  • Book Info
    Originalism, Federalism, and the American Constitutional Enterprise
    Book Description:

    In this lively historical examination of American federalism, a leading scholar in the field refutes the widely accepted notion that the founding fathers carefully crafted a constitutional balance of power between the states and the federal government. Edward A. Purcell Jr. bases his argument on close analysis of the Constitution's original structure and the ways that structure both induced and accommodated changes over the centuries.

    There was no clear agreement among the founding fathers regarding the "true" nature of American federalism, Purcell contends, nor was there a consensus on "correct" lines dividing state and national authority. Furthermore, even had there been some true "original" understanding, the elastic and dynamic nature of the constitutional structure would have made it impossible for subsequent generations to maintain any "original" or permanent balance. The author traces the evolution of federalism through the centuries, focusing particularly on shifting interpretations founded on political interests. He concludes with insights into current issues of federal power and a discussion of the grounds on which legitimate decisions about federal and state power should rest.

    eISBN: 978-0-300-15017-9
    Subjects: Business

Table of Contents

  1. Front Matter
    (pp. I-VI)
  2. Table of Contents
    (pp. VII-VIII)
    (pp. IX-X)
  4. Introduction.: The Inquiry
      (pp. 3-14)

      As the twenty-first century began, two major and related developments seemed to be reshaping American constitutional law. One was the frequent invocation of theories of “originalism,” claims that the Constitution should be interpreted in light of the “original” meaning it held for those who drafted and ratified it.¹ The other was a “federalism revival,” an intensifying effort to employ constitutional provisions to limit the powers of the national government and protect the sovereignty of the states. The two developments, moreover, seemed mutually supportive. The “original” relationship between nation and states—in contrast to the evolving series of relationships that developed...

  5. Part I. Structural Intrinsics
      (pp. 17-37)

      The federal structure was marked by imprecise and uncertain lines of authority for two quite different reasons. First, the Constitution gave the structure’s two distinct levels of government overlapping powers and charged each with safeguarding the same vague and contested values against the other’s depredations. Second, the provisions establishing the authority and responsibility of the two levels were incomplete and imprecise, and they failed to identify any clear and comprehensive line between them. American federalism, in other words, was doubly blurred because it was both ambivalent and ambiguous.

      The Constitution created a structure that placed two counterpoised levels of government...

      (pp. 38-52)

      The formal division of power between nation and states was but one component of the nation’s constitutional structure. Four major fault lines crosscut the binary division between central and state governments, generating fissures and tensions that fractionated the structure’s operations. The “federal republic,” Madison explained, would be founded on a society “broken into so many parts, interests, and classes of citizens, that the rights of the individuals, or of the minority, will be in little danger.”¹ His conclusion did not always hold, but his premise surely did. Those “many parts, interests, and classes” generated continuous pressures along the structure’s four...

      (pp. 53-68)

      The oldest and most enduring method of referring to the Constitution, Michael Kammen wrote, was “simply as an ‘instrument.’”¹ If the Constitution was an instrument, a writing empowered to accomplish certain legal ends, so too was the federal structure it established. It has been widely recognized, perhaps almost universally acknowledged, that Americans consistently used federalism as a manipulable device to advance their interests. Even its strongest defenders admitted as much. “It is common knowledge on Capitol Hill that federalism or states’ rights are nonstarters as objections to legislation,” explained Marci Hamilton, a strong defender of decentralized government. “Members spout federalism...

      (pp. 69-82)

      Although the founders established a federal structure and set out certain guiding principles and limiting provisions, they also summoned succeeding generations to adapt their creation to the demands of an unknown future. “’Tis time only,” Hamilton ventured, “that can mature and perfect so compound a system.”¹ Madison put the point more cautiously. “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation,” he explained, “are considered as more or less obscure and equivocal until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.”² It was essential...

  6. Part II. Consequential Dynamics
      (pp. 85-110)

      The federal structure’s four intrinsic characteristics—that it was doubly blurred, fractionated, instrumental, and contingent—made its operations inherently elastic, dynamic, and underdetermined; and together they rendered it impossible either to identify or to maintain a definitive boundary between state and national authority. The four characteristics shaped a structure that produced not stagnation or deadlock but adjustment and accommodation, not “stasis” but “intertemporal equilibria.”¹ Such “equilibria” were dynamic and adaptive, continuously regauging and rebalancing the pressures of multiple and conflicting forces that were themselves constantly shifting in nature, strength, and direction. The history of American federalism demonstrated the wisdom of...

      (pp. 111-139)

      As the Constitution left the states free to organize themselves internally, so it conferred similar powers on the central government. It gave Congress power to establish the institutional capacities necessary for the operation of the national government, and it made the three branches largely independent of one another in exercising their powers, pursuing their goals, and arranging many of their internal procedures. Holding such powers and enjoying such independence, the national branches—animated by their officeholders’ diverse interests and ambitions, operating in a rapidly changing world environment, and interacting with other components of the doubly blurred federal structure—could hardly...

      (pp. 140-160)

      Upon election to the House of Representatives in 1789, James Madison considered the overwhelming challenges that lay ahead and admitted how little the Constitution had actually settled. “We are in a wilderness without a single footstep to guide us,” he confessed.¹ Of the many things the Constitution had not settled, perhaps the most important was the locus of authority in construing the Constitution and resolving conflicts between the central government and the states. The matter had not been settled for an obvious reason. The founders harbored too many vague, incomplete, and conflicting ideas on the subject to underwrite any clear...

      (pp. 161-186)

      While ideas about the locus of authority in the federal structure shifted abruptly after the Civil War, general ideas about the nature of American federalism itself evolved more slowly. By the middle of the twentieth century, however, as the processes of social change accelerated ever more sharply under the intensifying pressures of centralization, globalization, and technological innovation, Americans experienced a growing uncertainty about the federal structure’s utility as well as its nature. Searching for direction in a rapidly changing world, they increasingly looked to the structure’s basic purposes in an effort to identify its consequences and assess its worth. Their...

  7. Part III. Conclusion
      (pp. 189-206)

      This inquiry examines the original nature of American federalism. It argues that, from its founding, the federal structure was doubly blurred, fractionated, instrumental, and contingent and that those four characteristics made the structure’s resulting governmental system inherently elastic, dynamic, and underdetermined. The inquiry suggests, consequently, that the claim that the federal structure provides specifically directive constitutional norms is deeply problematic and for the most part simply inaccurate. It suggests equally that the Constitution and other “originalist” sources fail to provide specifically directive norms capable of authoritatively resolving contested federalism issues. Its fundamental point, then, is not that federalism “changed” over...

  8. NOTES
    (pp. 207-292)
  9. INDEX
    (pp. 293-301)