modern federalism essay

Federalism, Now More Than Ever

In crafting our constitutional arrangement, the Framers chose a political union that divides power between a central government and member sovereigns. Federalism, they believed, was the best way to ensure a harmonious union between separate states with distinct cultures and political preferences. Yet over the past century, our political system has become increasingly centralized, with the federal government prescribing one-size-fits-all policy in some of the most contested areas of public discourse, like healthcare, education, and entitlements. The consequences of this consolidation are palpable — our country is politically fractured, with diverse sectors of society straining under the weight of policy dictated by distant lawmakers unacquainted with the needs of their constituents. By returning power to the states — those same powers expressly reserved to them under the Tenth Amendment — we can hope for some semblance of harmony.

While the Constitution clearly envisions a federal system, American federalism is, in part, the result of historical happenstance. Our democratic republic took form from thirteen colonies that came together as thirteen independent states. But the Framers were intentional in their decision to preserve the arrangement, believing that government that is closer to the people it serves is more effective.

Even if the Constitution did not clearly prescribe federalism, however, there are practical reasons to embrace the federal model. Much like the principle of subsidiarity, federalism promotes the common good: By retaining political authority at more localized levels of civic society, individuals are more likely to participate directly in crafting solutions to their own problems, which allows human dignity to flourish. Federalism also incentivizes a race to the top, whereby states are in constant competition to provide better governance and better policy for their citizens. And by allowing states to operate as “laboratories of democracy,” all Americans benefit. When one state shows that a particular policy works well, other states will likely follow suit and attempt to replicate it. But if a particular policy fails, Americans in the other 49 states are spared from having to suffer under it.

Despite these practical — and constitutional — reasons for embracing federalism, our national government has ballooned in size and power over the last two decades. And no one party is to blame. While centralization has, in recent decades, been associated with the Democratic Party, both parties have shown themselves to be fair-weather friends of centralized government. Whenever the balance of power shifts at the national level, the party in power is happy to wield the mighty sword of federal authority, while the party in the minority parries with the shield of federalism. During the Clinton Administration, for example, federalism had a resurgence among conservatives. Variously dubbed “New Federalism” or the “Devolution Revolution,” the federalism of the 1990’s was closely associated with the conservative push for, among other things, reassigning the administration of social services to the states. During the Bush Administration, however, many of these same conservatives began to advocate for increased national control over education and healthcare. Most recently, during the Trump Administration, “blue states” became some of the strongest advocates of federalism, as they tried to resist federal policy in areas like immigration and the environment. California, for example, leaned heavily on principles of federalism and the related anti-commandeering doctrine to defend its “sanctuary state” from the Trump Administration’s influence.

But is this constant vacillation between federal and state control good for our country and our national discourse? Perhaps instead of expanding and contracting our view of states’ rights with each election cycle, we would be wise to consider embracing our federal system as it was originally understood, regardless of which way the political winds are blowing. Indeed, it has often worked well for us when we’ve done just that.

Most recently, the COVID-19 pandemic has become a paradigm for how essential and effective federalism is. Florida, for instance, has had success in reducing deaths and overall infections, even while being home to one of the highest percentages of high-risk individuals in the country. Other states, like New York, have been abject failures. Our federal system allowed states to innovate and tailor their response to the pandemic to the needs of their own people and their own circumstances. Had Washington dictated a one-size-fits all response, all states — and thus the entire country — would have risked more infections and more lives lost. Indeed, the state-level response to the COVID-19 pandemic has become a case in point for our federal system.

Perhaps the most compelling counterargument to a full-scale embrace of federalism is the fact that, at the time in American history when states had the most independence, many states endorsed the institution of slavery, culminating in the Civil War. How then can we say that ceding power back to the states is a prudent strategy for creating harmony in our nation? The answer lies in a proper understanding of the balance between state and federal authority. To be sure, the federal government has a crucial role to play in a healthy federal system. The federal government should take seriously its duty to enforce the Reconstruction amendments, which prevent states from legalizing slavery and violating the individual rights guaranteed by the Constitution. In fact, the absence of such national authority in the early years of the Republic allowed slavery to expand. But apart from the powers expressly granted to the federal government — crafting foreign policy, regulating interstate commerce, protecting those rights guaranteed under the Reconstruction amendments, and a handful of other powers — the Constitution contemplates strong state governments that are free to develop their own political systems. This is the vision of federalism to which we should return.

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American Federalism Today

Expert scholars and practitioners examine the relationship between the US federal and state and local governments, in political theory and in practice, applied to current social, economic, and fiscal issues.

The framers of the US Constitution enumerated specific powers for the federal government, leaving all else under the purview of states or the people. Over time, the federal government has expanded its role, yet the American people have more trust in state and local governments that are closer to them—and where co-partisanship is often a matter of necessity. Scholars and practitioners in policymaking gathered at the Hoover Institution in September 2023 to discuss the ramifications of federalism for contemporary issues. American Federalism Today presents those conference proceedings.

Renowned experts from a range of disciplines, including economics, political science, history, and law, lay out the key priorities in evaluating and reinvigorating America’s federal system of governance. Among the topics they examine are infrastructure, education and healthcare financing, trust in government, and intergovernmental relations in an era of rising federal debt and unfunded state and local liabilities. Three influential governors—Mitch Daniels, Jeb Bush, and Jerry Brown—describe navigating the federalist system as they led their states through many challenges. This unique compilation draws on the remarkable expertise and experience of its contributors to probe federalism’s strengths, weaknesses, opportunities, and challenges in the nation’s political and economic governance.

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Michael J. Boskin is the Wohlford Family Senior Fellow at the Hoover Institution, the Tully M. Friedman Professor of Economics at Stanford University, and former chair of the President’s Council of Economic Advisers.

New Book Explores How State and Federal Governments Balance Power and Responsibilities

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A Modern Take on Federalism: Balancing State and Federal Power

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By Andrew Cohen

For decades, political ideology offered a strong indicator of how Americans viewed federalism: conservatives generally lauded states’ rights while liberals supported expansive uses of federal power.

With the election of President Trump and the emergence of his administration’s agenda, a more complex framework has become visible—drawing increased attention from policymakers, attorneys, and scholars. Experts from all three groups will gather November 3 at Berkeley Law for a conference that explores federalism’s rising importance and potential path.

Free registration is open for the daylong event, which will examine federalism’s implications for legal responses to climate change, and immigration law and policy—specifically border security, travel bans, and sanctuary cities.

“We chose to focus on these issues because they’re directly relevant to what’s happening in California,” said Professor Bertrall Ross , who co-chairs Berkeley Law’s Faculty Planning Committee with Assistant Professor Karen Tani. “California is at the forefront with sanctuary cities, and the state has long been a national leader on climate change regulations.”

The Honorable Tani Cantil-Sakauye, Chief Justice of California, will keynote the event in a conversation with David A. Carrillo ’95 . She will discuss how federalism concepts apply to state and federal court interactions, the importance of those courts’ distinct roles, and how federalism principles apply in state court decision making.

Carrillo, executive director of Berkeley Law’s California Constitution Center , called Cantil-Sakauye’s appearance “a very special privilege.” As the state’s highest judicial officer, she “is in a unique position to consider important legal questions, and federalism is no different. For academics, a discussion like this is a chance to find out how scholarly perspectives are received in the courts. For practitioners, any insight into the court’s views about a substantive issue is a valuable learning opportunity,” Carrillo said.

Balance and breadth

Earlier in the year, Professor and then-Interim Dean Melissa Murray began conceptualizing the conference as it became evident how central federalism would be to America’s current political and policymaking landscape.

Tani and Ross then worked with Carrillo and others to design the program and recruit a diverse slate of participants with wide-ranging backgrounds, views, and expertise. That roster includes high-profile experts such as former Michigan Governor Jennifer Granholm, climate change litigator Sean Donahue, and San Francisco City Attorney Dennis Herrera, as well as top academics in law, political science, and history.

“We wanted to bring in people who are thinking about how federalism works in the real world—people who are familiar with theoretical accounts of American federalism, but can also speak to federalism’s actual meaning for politics and policymaking,” Tani said. “It’s great to welcome a really diverse group—not only doctrinal scholars, but also historians and political scientists, policymakers at all different levels of government, and people at different points on the political spectrum.”

Tani said that outside of law schools and government departments, “not many people were interested in federalism before Trump was elected. We thought we understood it. Now there’s a renewal of interest because it appears that the national government is making dramatic policy shifts, in areas that regular people really care about. Stock phrases like ‘states’ rights’ and ‘local control’ take on new meaning in the context of resistance to these changes.”

Tani noted that this is also a fascinating moment for people who have long been interested in federalism. “Now that conventional positions have been upended, can we agree on federalism’s ground rules? Or will we just accept that those rules are going to fluctuate depending on where your party enjoys power within the federal system?”

By bringing in “folks on both sides of the aisle to engage in reasoned conversation,” Ross hopes that Berkeley Law can help “set a model for the types of conversations we should be having” on pivotal issues.

While conference participants will describe how notions of federalism are shifting, Carrillo noted that the foundational arguments remain unchanged.  

“The flexible power balance between the federal and state governments is intended to be dynamic and responsive to situational needs,” he said. “Today’s federalism questions are typical of those past: what answers are best for the day’s policy debates, and should those be national or state solutions?”

10/19/2017 Topics: Constitutional and Regulatory , Criminal Justice , Environment and Energy , Faculty News

The New Federalism

In a crisis defined by erratic leadership in Washington, D.C., the states, as much out of desperation as by design, find themselves asserting long-dormant powers.

Suddenly, the relationship between the federal government and the states seems to be at the center of U.S. politics. Defying Donald Trump’s claims of “total authority,” states throughout the country have been banding together to plot their own return to normalcy in the COVID-19 era. This follows weeks of growing rancor between some governors and the president over the alleged failure of the federal government to funnel crucial medical supplies and testing to the places where they are needed. And last month, another institution of the federal government, the U.S. Supreme Court, blocked an attempt by the governor of Wisconsin to extend the state’s mail-in-ballot deadline in order to prevent further spread of the contagion at the polls.

In fact, this relationship has been at the center of things all along. But in a crisis defined by erratic leadership in Washington, D.C., the states, as much out of desperation as by design, find themselves asserting long-dormant powers. A new era of federalism is unfolding before our eyes.

Juliettte Kayyem: Trump leaves states to fend for themselves

Prior to the Civil War, the fiercest defenders of the states were white southerners who feared that the federal government, at the behest of northern states, would impinge on and even destroy the South’s slave system, much of it underpinned by the laws of various southern states. The Union’s triumph in the Civil War was supposed to end this era of states’ rights. It did, up to a point. America would never again confront a serious threat of secession by constituent states. But by the 1890s, southern state legislatures, with the sanction of the Supreme Court, had imposed segregation and subordination on their states’ black citizens. States’ rights now took the form of Jim Crow, America’s apartheid.

This governing philosophy rebounded in part because it suited the interests of southern white supremacists. But a belief in states’ rights was also an expression of a long-standing conviction, common among northerners and southerners alike, that the Constitution endowed the states with an authority broader than that of the federal government. The courts called this authority the “police power,” by which they meant something far beyond the law-enforcement oversight that each state had. The police power conferred on states the right and the duty to look after the economic, social, and moral welfare of their citizens. Protecting citizens from epidemics ranked high on states’ to-do list; so did improving the moral fiber of the population, regulating corporate behavior in the public interest, and keeping suspect groups—single women living outside patriarchal arrangements, minorities, and “vagrants”—in line.

One can readily see the coercive dimension of the police power, and why southern states used it to buttress the legality of Jim Crow. But Supreme Court Justice Louis Brandeis was one of many who saw progressive potential in such authority. Brandeis hailed the states as America’s “laboratories of democracy.” A state may, Brandeis wrote in 1932, “try novel social and economic experiments without risk to the rest of the country." A leading figure in the Progressive movement before he joined the Supreme Court in 1916, Brandeis had been involved in several of these state experiments himself, reforming the life-insurance industry in Massachusetts, defending laws regulating female labor in Oregon, and improving employer-employee relations in New York. He discerned in these state-level experiments the building blocks of a more just and egalitarian America.

Brandeis’s progressive vision of state rule was never fully realized. Patchworks of state laws failed to provide effective regulation over a tightly integrated capitalist economy spanning the entire continent, especially once the Great Depression struck. Meanwhile, the regressive version of states’ rights persisted in laws denying freedom of religion, reproductive rights, and racial equality. As the nation reckoned in the 1940s and ’50s with the horrors of totalitarianism and the Holocaust, these state violations of civil liberties came to seem intolerable to many Americans. Thus, in the 1960s, the Supreme Court, under the leadership of Chief Justice Earl Warren, took on the states, throwing out virtually every state law seen as contradicting the Bill of Rights or the Fourteenth Amendment. The Warren Court’s actions, aimed at the states’ police power, also undercut the Brandeisian vision of states leading the way in social reform. Brandeis’s heirs now looked to Washington, D.C., for leadership.

Many white southerners never forgave the Warren Court for empowering the central government at the expense of the states. They joined Republicans in the North and West who were convinced that the expansion of federal-government power across the New Deal, World War II, and Great Society eras had violated the Constitution and was destroying American liberty. This was the Republican Party that Ronald Reagan forged. Over time, Reagan’s successors Newt Gingrich and Mitch McConnell stripped the central state of its dynamism, frustrating the efforts of Democratic Presidents Bill Clinton and Barack Obama to build on the legacies of Franklin D. Roosevelt and Lyndon B. Johnson. The federal government’s dysfunction, so evident in Trump’s handling of the pandemic, is not solely of his own creation; rather, his administration is a symptom of the paralysis that Republicans have sowed at the federal level for decades.

Ibram X. Kendi: We’re still living and dying in the slaveholder’s republic

It is hardly surprising, in these circumstances, that the fabled Centers for Disease Control and Prevention laboratories have failed the American public; that the states are rising again; and that governors, not the president or senators, have emerged as heroes in the coronavirus pandemic. Day by day now, states are creating a new federalism: pushing back against ill-conceived directives from Washington, D.C. (as in Maryland Governor Larry Hogan’s case with National Guard troops); developing new competencies; launching schemes of interstate and private-public cooperation; browbeating the federal government into supplying vital resources and establishing necessary partnerships. At no other time in the past 100 years has Brandeis’s call to individual states to launch “novel social and economic experiments without risk to the rest of the country" seemed as relevant as it does now.

Given how the federal government has been hollowed out, the work of the states has been nation-saving. They are a kind of strategic reserve, the gift of Founding Fathers who believed that concentrating too much power in one branch of government or one man might someday destroy the republic. Though diminished across the middle third of the 20th century by a Warren Court rightly intent on making them subservient to the federal Bill of Rights, the states, even before the pandemic hit, had begun to discover that their police power was still robust. On one issue after another, ranging from gay marriage and increases in the minimum wage to climate-respecting laws and immigrant-rights decrees, states have started to show America how it might find its way to a progressive future.

And now states are leading America out of the pandemic abyss. In New York, Governor Andrew Cuomo demonstrates a level of commitment, focus, and grit absent from a rudderless national government. In Massachusetts, Governor Charlie Baker is putting in place a mass testing and tracking system that will, if it succeeds, show every other state (and Washington, D.C.) how it can be done. In California, Governor Gavin Newsom has called on healthy residents to form a volunteer corps to help the needy, a move inspired by a spirit of common purpose and shared sacrifice that President Trump has shown himself incapable of summoning. As even one advisor to the Trump administration recently admitted to The Washington Post , “The states are just doing everything on their own.”

Ultimately, the states cannot do it alone. There are too many of them, and some will always go rogue. States are also resource-poor relative to the federal government, barred by the Constitution from minting their own money and prohibited by their own state constitutions (in many cases) from ending their fiscal years in the red. Without federal assistance, some are likely to be bankrupted by pandemic expenditures and forced to lay off so many public workers that they will no longer be able to perform the most elementary tasks of government. It is also unlikely that a state, or a consortium of states, can become the prime mover in developing drug therapies and a vaccine. Here, too, the federal government must take the lead.

Thus, the states cannot succeed without the federal government recovering something of the esprit that animated it from the Great Depression through the first decades of the Cold War. And yet something about the new federalism will endure. States have once again become the innovators in American political life and the institutions that are taking their democratic remit seriously. If Americans emerge from the current darkness with their faith in their fellow citizens and their government intact, the states will have lit the way. Somewhere, Louis Brandeis must be smiling.

This story is part of the project “ The Battle for the Constitution ,” in partnership with the National Constitution Center .

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Federalism is the theory or advocacy of federal principles for dividing powers between member units and common institutions. Unlike in a unitary state, sovereignty in federal political orders is non-centralized, often constitutionally, between at least two levels so that units at each level have final authority and can be self governing in some issue area. Citizens thus have political obligations to, or have their rights secured by, two authorities. The division of power between the member unit and center may vary, typically the center has powers regarding defense and foreign policy, but member units may also have international roles. The decision-making bodies of member units may also participate in central decision-making bodies. Much recent philosophical attention is spurred by renewed political interest in federalism and backlashes against particular instances, coupled with empirical findings concerning the requisite and legitimate basis for stability and trust among citizens in federal political orders. Philosophical contributions have addressed the dilemmas and opportunities facing Canada, Australia, Europe, Russia, Iraq, Nepal, Ethiopia and Nigeria, to mention just a few areas where federal arrangements are seen as interesting solutions to accommodate differences among populations divided by ethnic or cultural cleavages yet seeking a common, often democratic, political order.

1. Taxonomy

2.1 some global perspectives, 2.2 western contributions, 3.1 reasons for a federal order rather than separate states or secession, 3.2 reasons to prefer federal orders over a unitary state, 4.1 sovereignty or federalism, 4.2 issues of constitutional and institutional design, 4.3 sources of stability, 4.4 division of power, 4.5 distributive justice, 4.6 democratic theory, 4.7 politics of recognition, contemporary, other internet resources, related entries.

Much valuable scholarship explicates the central terms ‘federalism’, ‘federation’ and ‘federal systems’ (cf. Wheare 1964, King 1982, Elazar 1987, Elazar 1987a, Riker 1993, Watts 1998).

A federal political order is here taken to be “the genus of political organization that is marked by the combination of shared rule and self-rule” (Watts 1998, 120). Federalism is the descriptive theory or normative advocacy of such an order, including principles for dividing final authority between member units and the common institutions.

A federation is one species of such a federal order; other species are unions, confederations, leagues and decentralised unions—and hybrids such as the present European Union (Elazar 1987, Watts 1998). A federation in this sense involves a territorial division of power between constituent units—sometimes called ‘provinces’, ‘cantons’, possibly ‘cities’, or confusingly ‘states’—and a common government. This division of power is typically entrenched in a constitution which neither a member unit nor the common government can alter unilaterally. The member unit and the common government both have direct effect on the citizenry—the common government operates “on the individual citizens composing the nation” (Federalist Paper 39)—and the authorities of both are directly elected (Watts 1998, 121). In comparison, decentralized authority in unitary states can typically be revoked by the central legislature at will. Many multilevel forms of governance may also be revised by units at one level without consent by bodies at other levels. Such entrenchments notwithstanding, some centralization often occurs owing to the constitutional interpretations by a federal level court in charge of settling conflicts regarding the scopes of final legislative and/or judicial authority.

In contrast, ‘confederation’ has come to mean a political order with a weaker center than a federation, often dependent on the constituent units (Watts 1998, 121). Typically, in a confederation a) member units may legally exit, b) the center only exercises authority delegated by member units, c) the center is subject to member unit veto on many issues, d) center decisions bind member units but not citizens directly, e) the center lacks an independent fiscal or electoral base, and/or f) the member units do not cede authority permanently to the center. Confederations are often based on agreements for specific tasks, and the common government may be completely exercised by delegates of the member unit governments. Thus many would count as confederations the North American states during 1776–1787, Switzerland 1291–1847, and the present European Union—though it has several elements typical of federations.

In symmetric ( con ) federations the member units have the same bundles of powers, while in asymmetric ( con ) federations such as Russia, Canada, the European Union, Spain, or India the bundles may be different among member units; some member units may for instance have special rights regarding language or culture. Some asymmetric arrangements involve one smaller state and a larger, where the smaller partakes in governing the larger while retaining sovereignty on some issues (Elazar 1987, Watts 1998).

A helpful categorisation among federal arrangements concerns the relationship between the central unit, member units and individuals. If the decisions made centrally do not involve member units at all, we may speak of separate ( split or compact ) federalism. Some issues may be the responsibility of the central unit, others belonging to the member units, where citizens vote their representatives directly to both bodies (U.S. Constitution Art. II Section 1; cf. Dahl 2001). Federations can involve member units in central decision-making in at least two different ways in various forms of interlocking (or cooperative ) federalism. Member unit representatives can participate within central bodies—in cabinets or legislatures—( collective agency compositional arrangement). Or they constitute one central body that interacts with other central bodies, for instance where member unit government representatives form an Upper House with power to veto or postpone decisions by majority or qualified majority vote ( divided agency / relational arrangements). These legal arrangements give rise to varieties of multi-level governance: continuous negotiations among authorities at different territorial levels (Marks 1993, Hooghe and Marks 2003, Scharpf 1983). Responsiveness to individuals may benefit from interlocking federalism, but often at the cost of transparency and accountability.

Several authors identify two quite distinct processes that lead to a federal political order (Friedrich 1968, Buchanan 1995, Stepan 1999 and others). Independent states may aggregate by ceding or pooling sovereign powers in certain domains for the sake of goods otherwise unattainable, such as security or economic prosperity. Such coming together federal political orders are typically arranged to constrain the center and prevent majorities from overriding a member unit. Examples include the present USA, Canada, Switzerland, and Australia. Holding together federal political orders develop from unitary states, as governments devolve authority to alleviate threats of unrest or secession by territorially clustered minorities. Such federal political orders often grant some member units particular domains of sovereignty e.g. over language and cultural rights in an asymmetric federation, while maintaining broad scope of action for the central government and majorities. Examples include India, Belgium and Spain.

In addition to territorially organized federal political orders, other interesting alternatives to unitary states occur when non-territorial member units are constituted by groups sharing ethnic, religious or other characteristics. These systems are sometimes referred to as ‘non-territorial’ federations. Karl Renner and Otto Bauer explored such arrangements for geographically dispersed cultural minorities, allowing them some cultural and “personal” autonomy without territorial self rule (Bauer 1903; Renner 1907; Bottomore and Goode 1978; cf. Tamir 1993 and Nimni 2005). Consociations consist of somewhat insulated groups in member units who in addition are represented in central institutions often governing by unanimity rather than by majority (Lijphart 1977).

2. History of Federalism

A wide-spread interest among political philosophers in topics concerning the centralised nation state have fuelled attention to historical contributions on unitary sovereignty. However, we can also identify a steady stream of contributions to the philosophy of federalism, also by those more well known for their arguments concerning centralised power (cf. Karmis and Norman 2005 for such readings). Much of the Western literature on federalism has focused on the unit of states. To underscore this bias, consider first some non-Western practices and theories of federal features.

We find federal modes of political organisation on many continents, and contributions to theories about federalism in written sources across philosophical traditions. A range of philosophical contributions underscore that federal perspectives can apply to a wide range of units other than the sovereign states central in European and U.S. thought.

The tribal organisation of the Māori in what is now New Zealand included family groups ( whanau ), who would work together and collaborate for defense as a clan ( hapū ). The tribe ( iwi ) would in turn operate as a federation among several hapū for common defense (Ballara 1998, 19).

Several extinct African societies had federal elements. Edward Wamala describes what we recognise as federal features in pre-14th century Ganda society, in what later became the kingdom of the Baganda, now part of Uganda. The power structures between the chief ( ssabataka ) and heads of tribes ( mutaka ) was one of primus inter pares . The tribes enjoyed immunity, in that the higher units should no usurp the responsibilities of the lower units of power but only promote the well-being of the lower units (Wamala 2004: 436–437)

Nahua (Aztek) culture illustrates multi-level federalism: Tlaxilacalli - badly translated and understood as “neighbourhoods” - would submit to the authority of the sovereign local polity, or altepetl , which then scaled up to autonomous mega-provinces ( huei altepetl ) and finally to the entire empire. At each level, submission was traded for autonomy, undercutting any attempt at direct centralising rule (Johnson 2017). In the 1428 triple alliance for military purposes among the three city-states ( altepeme ) of Tenochtitlan, Texcoco and Totoquihuatzin, each of these rules over their dependent altepetl without interference by the other two (Lockhart 1992).

The Confucian political philosopher Mencius (379–298 BC) laid out a three level ‘familial’ order (Chan 2003). The family had primary responsibility for those unable to care for themselves, and rulers should be the parents of the people. (Mencius 2003, 1B.13). When the family could not assist, the community network should provide support. Only when the community was unable would what we might call the state have an obligation to aid.

We find expressions of federalism in the third pillar of Islam: Obligatory charity in the form of zakat provided to certain needy persons outside one’s own household (Qur’an 9: 103). Every able Muslim must provide a fixed proportion of their net wealth—2.5%—to support others in need. The role of the state may vary when it comes to assess, collect and distribute zakat. In some states, the collection or distribution of zakat is the responsibility of civil society organisations or mosques. In other states, it is the government’s responsibility to either ensure that zakat is managed if Muslims fail to pay; or the whole system may be managed by the state (Bilo and Mechado 2018).

The sub-Saharan philosophy of Ubuntu has federal features that have also contributed to legal theory. The term ‘Ubuntu’ stems from the Nguni phrase “Umuntu ngumuntu ngabantu” meaning a person is a person through other persons. Ubuntu emphasises the harmonious relationships between persons as constitutive of the individual, underscoring compassion and commitment to one another’s growth (Mbiti 1969, Gädeke 2019, Metz 2011). The task of governments at various territorial levels is to promote harmonious flourishing and community of the constituent parts (Shutte 2001). Ubuntu was included in the epilogue of the 1993 Interim Constitution of South Africa, but not explicitly in its 1996 Constitution.

The confederacy among five (later six) Haudenosaunee (Iroquois) nations dates back to between the 12th and 15th century. The oral constitution—The Great Law of Peace—specified that each nation elected delegates, or sachems , who dealt with internal affairs. The confederacy’s Grand Council could not interfere with the internal affairs of each tribe, but would discuss particular matters of common concern such as war, peace, and treaty making. The Haudenosaunee practice of granting the member units immunity apparently influenced Benjamin Franklin’s and others’ call for a union among the English colonies (Fenton 1998). Iris Marion Young explored this tradition to develop a theory of federalism that would secure immunity and redress power imbalances (Young 2000; Levy 2008).

Aristotle (384–322 BC) provides an early Western example of federal thought, where some of the member units are not political. The tasks of households and villages is to secure individuals’ necessities of life. The city-state ( polis ) is a self-sufficient community of such households, clans and villages, for protection and fulfilment (Politics, III.9, 1280b).

Several of the early European contributors to federalist thought explored the rationale and weaknesses of centralised states as they emerged and developed in the 17th and 18th century. Johannes Althusius (1557–1630) is often regarded as the father of modern federalist thought. He argued in Politica Methodice Digesta (Althusius 1603) for autonomy of his city Emden, both against its Lutheran provincial Lord and against the Catholic Emperor. Althusius was strongly influenced by French Huguenots and Calvinism. As a permanent minority in several states, Calvinists developed a doctrine of resistance as the right and duty of “natural leaders” to resist tyranny. Orthodox Calvinists insisted on sovereignty in the social circles subordinate only to God’s laws. The French Protestant Huguenots developed a theory of legitimacy further, presented 1579 by an author with the telling pseudonym “Junius Brutus” in Vindiciae Contra Tyrannos . The people, regarded as a corporate body in territorial hierarchical communities, has a God-granted right to resist rulers without rightful claim. Rejecting theocracy, Althusius developed a non-sectarian, non-religious contractualist political theory of federations that prohibited state intervention even for purposes of promoting the right faith. Accommodation of dissent and diversity prevailed over any interest in subordinating political powers to religion or vice versa.

Since humans are fundamentally dependent on others for the reliable provision of requirements of a comfortable and holy life, we require communities and associations that are both instrumentally and intrinsically important for supporting [ subsidia ] our needs. Althusius, like Aristotle, included non-political units in his federal theory. Families, guilds, cities, provinces, states and other associations owe their legitimacy and claims to political power to their various roles in enabling a holy life, rather than to individuals’ interest in autonomy. Each association claims autonomy within its own sphere against intervention by other associations. Borrowing a term originally used for the alliance between God and men, Althusius holds that associations enter into secular agreements— pactum foederis —to live together in mutual benevolence.

Several early contributors explored what we may now regard as various species of federal political orders, partly with an eye to resolving inter-state conflicts.

Ludolph Hugo (ca. 1630–1704) was the first to distinguish confederations based on alliances, decentralized unitary states such as the Roman Empire, and federations, characterized by ‘double governments’ with territorial division of powers, in De Statu Regionum Germanie (1661) (cf. Elazar 1998; Riley 1976).

A recurring concern was tensions between federalism and conceptions of sovereignty. Samuel Pufendorf (1632–1684) maintained that sovereign states could at most “agree to intertwine for all time” in a confederation deciding by unanimity. Move to majority rule turned the legal order into an ‘irregular system’ closer to a state. If sovereignty is a unique site of final and independent authority, federations are no more than voluntary treaties among fundamentally independent states, argued Emmerik Vattel (1714–1767). Later thinkers challenged this understanding of sovereignty, in debates continuing to this day concerning the European Union. (MacCormick 1999, Schütze 2009).

In The Spirit of Laws (1748) Charles de Secondat, Baron de Montesquieu (1689–1755) argued for confederal arrangements as combining the best of small and large political units, without the disadvantages of either. On the one hand they could provide the advantages of small states such as republican participation and liberty understood as non-domination—that is, security against abuse of power. At the same time confederal orders secure the benefits of larger states such as military security, without the risks of small and large states. A ‘confederate republic’ with separation of powers allows sufficient homogeneity and identification within sufficiently small member units. The member units in turn pool powers sufficient to secure external security, reserving the right to secede (Book 9, 1). Member units serve as checks on each other, since other member units may intervene to quell insurrection and power abuse in one member unit. These themes reoccur in later contributions, up to and including discussions concerning the European Union (cf. Levy 2004, 2005, 2007).

David Hume (1711–1776) disagreed with Montesquieu that smaller size is better. Instead, “in a large democracy … there is compass and room enough to refine the democracy.” In “Idea of a Perfect Commonwealth” (Hume 1752) Hume recommended a federal arrangement for deliberation of laws involving both member unit and central legislatures. Member units enjoy several powers and partake in central decisions, but their laws and court judgments can always be overruled by the central bodies, hence it seems that Hume’s model is not federal as the term is used here. He held that such a numerous and geographically large system would do better than small cities in preventing decisions based on “intrigue, prejudice or passion” against the public interest.

Several 18th century peace plans for Europe recommended confederal arrangements. The 1713 Peace Plan of Abbé Charles de Saint-Pierre (1658–1743) would allow intervention in member units to quell rebellion and wars on non-members to force them to join an established confederation, and required unanimity for changes to the agreement.

Jean-Jacques Rousseau (1712–1778) presented and critiqued Saint-Pierre’s proposal, listing several conditions including that all major powers must be members, that the joint legislation must be binding, that the joint forces must be stronger than any single state, and that secession must be illegal. Again, unanimity was required for changes to the agreement.

Immanuel Kant (1724–1804) defended a confederation for peace in On Perpetual Peace (1796). His Second Definite Article of a Perpetual Peace holds that the right of nations shall be based on a pacific federation among free states rather than a peace treaty or an international state: “This federation does not aim to acquire any power like that of a state, but merely to preserve and secure the freedom of each state in itself, along with that of the other confederated states, although this does not mean that they need to submit to public laws and to a coercive power which enforces them, as do men in a state of nature.”

The discussions surrounding the U.S. Constitutional Convention of 1787 marks a clear development in federal thought, also as regards the tensions between unitary sovereignty and divided authority. One central feature is that federations were seen as uniting not only member units as in confederations, but also the citizenry directly.

The Articles of Confederation of 1781 among the 13 American states fighting British rule had established a center too weak for law enforcement, defense and for securing interstate commerce. What has become known as the U.S. Constitutional Convention met May 25–September 17, 1787. It was explicitly restricted to revise the Articles, but ended up recommending more fundamental changes. The proposed constitution prompted widespread debate and arguments addressing the benefits and risks of federalism versus confederal arrangements, leading eventually to the Constitution that took effect in 1789.

The “Anti-federalists” were fearful of undue centralization. They worried that the powers of central authorities were not sufficiently constrained e.g., by a bill of rights (John DeWitt 1787) that was eventually ratified in 1791. They also feared that the center might gradually usurp the member units’ powers. Citing Montesquieu, another pseudonymous ‘Brutus’ doubted whether a republic of such geographical size with so many inhabitants with conflicting interests could avoid tyranny and would allow common deliberation and decision based on local knowledge (Brutus (Robert Yates?) 1787).

In The Federalist Papers , James Madison (1751–1836), Alexander Hamilton (1755–1804) and John Jay (1745–1829) argued vigorously for the suggested model of interlocking federal arrangements (Federalist 10, 45, 51, 62). Madison and Hamilton agreed with Hume that the risk of tyranny by passionate majorities was reduced in larger republics where member units of shared interest could and would check each other: “A rage for paper money, for an abolition of debts, for an equal division of property, or for any improper or wicked project, will be less likely to pervade the whole body of the Union than a particular member of it.” (Federalist 10). Splitting sovereignty between member unit and center would also protect individuals’ rights against abuse by authorities at either level, or so believed Hamilton, quoting Montesquieu at length to this effect (Federalist 9).

Noting the problems of allocating powers correctly, Madison supported placing some authority with member units since they would be best fit to address “local circumstances and lesser interests” otherwise neglected by the center (Federalist 37).

Madison and Hamilton urged centralized powers of defense and interstate commerce (Federalist 11, 23), and argued for the need to solve coordination and assurance problems of partial compliance, through two new means: Centralized enforcement and direct applicability of central decisions to individuals (Federalist 16, also noted by Tocqueville 1835–40). They were wary of granting member units veto power typical of confederal arrangements, since that would render the center weak and cause “tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.” (Madison and Hamilton, Federalist 22; and cf. 20).

They were particularly concerned to address worries of undue centralization, arguing that such worries should be addressed not by constraining the extent of power in the relevant fields, such as defense, but instead by the composition of the central authority (Federalist 31). They also claimed that the people would maintain stronger “affection, esteem, and reverence” towards the member unit government owing to its public visibility in the day-to-day administration of criminal and civil justice (Federalist 17).

John Stuart Mill (1806–1873), in chapter 17 of Considerations on Representative Government (1861), recommended federations among “portions of mankind” not disposed to live under a common government, to prevent wars among themselves and protect against aggression. He would also allow the center sufficient powers so as to ensure all benefits of union—including powers to prevent frontier duties to facilitate commerce. He listed three necessary conditions for a federation: sufficient mutual sympathy “of race, language, religion, and, above all, of political institutions, as conducing most to a feeling of identity of political interest”; no member unit so powerful as to not require union for defense nor tempt unduly to secession; and rough equality of strength among member units to prevent internal domination by one or two. Mill also claimed among the benefits of federations that they reduce the number of weak states hence reduce temptation to aggression, ending wars and restrictions on commence among member units; and that federations are less aggressive, only using their power defensively. Further benefits from federations—and from decentralized authority in general—might include learning from ‘experiments in living’.

Pierre-Joseph Proudhon (1809–1865), in Du Principe fédératif (1863) defended federalism as the best way to retain individual liberty within ‘natural’ communities such as families and guilds who enter pacts among themselves for necessary and specific purposes. The state is only one of several non-sovereign agents in charge of coordinating, without final authority.

While Proudhon was wary of centralisation, authors such as Harold Laski warned of ‘The Obsolesence of Federalism’ (1939). The important problems, such as those wrought by ‘giant capitalism,’ require more centralised responses than federal arrangements can muster.

Philosophical reflections on federalism were invigorated during and after the Second World War, for several reasons. Altiero Spinelli and Ernesto Rossi called for a European federal state in the Ventotene Manifesto , published 1944. They condemned totalitarian, centralised states and the never ending conflicts among them. Instead there should be enough shared control over military and economic power, yet “each State will retain the autonomy it needs for a plastic articulation and development of political life according to the particular characteristics of the various peoples.” Many explain and justify the European Union along precisely these lines, while others are more critical.

Hannah Arendt (1906–1975) traced both totalitarianism and industrialized mass murder to flaws in the sovereign nation-state model. Skeptical both of liberal internationalism and political realism, she instead urged a Republican federal model or ideal type wherein “the federated units mutually check and control their powers” (Arendt 1972).

The exit of colonial powers also left multi-ethnic states that required creative solutions to combine self rule and shared rule (Karmis and Norman 2005). In addition, globalisation has prompted not only integration and harmonisation, but also—partly in response—explorations of ways to still maintain some local self rule (Watts 1998).

Developments of the European Union and backlash against its particular forms of political and legal integration is one major cause of renewed attention to the philosophy of federalism. Recent philosophical discussions have addressed several issues, including centrally the reasons for federalism, and attention to the sources of stability and instability; the legitimate division of power between member unit and center; distributive justice, challenges to received democratic theory, and concerns about the politics of recognition.

3. Reasons for Federalism

Many arguments for federalism have traditionally been put in terms of promoting various forms of liberty in the form of non-domination, immunity or enhanced opportunity sets (Elazar 1987a). When considering reasons offered in the literature for federal political orders, many appear to be in favor of decentralization without requiring constitutional entrenchment of split authority. Two sets of arguments can be distinguished: Arguments favoring federal orders compared with secession and completely independent sovereign states; and arguments supporting federal arrangements rather than a (further) centralized unitary state. They occur in different forms and from different starting points, in defense of ‘coming together’ federalism, and in favor of ‘holding together’ federalism.

There are several suggested reasons for a federal order rather than separate states or secession.

• Federations can facilitate some objectives of sovereign states, such as credible commitments, certain kinds of coordination to secure ‘public goods’ of various sorts, and to control externalities that affect other parties, by transferring some powers to a common body. Since cooperation in some areas can ‘spill over’ and create demands for further coordination in other sectors, federations often exhibit creeping centralisation. Note that several of these objectives require getting the allocation of competences and veto points right within the federal order. For some complex common objectives such as environmental problems, federal features otherwise risk becoming part of the problem (Adler 2005, Dalmazzone 2006).

Federations may foster peace, in the senses of preventing wars and preventing fears of war, in several ways. States can join a (con)federation to become jointly powerful enough to dissuade external aggressors, and/or to prevent aggressive and preemptive wars among themselves. The European federalists Altieri Spinelli, Ernesto Rossi and Eugenio Colorni argued the latter in the 1941 Ventotene Manifesto: Only a European federation could prevent war between totalitarian, aggressive states. Such arguments assume, of course, that the (con)federation will not become more aggressive than each state separately, a point Mill argued.

Federations can promote economic prosperity by removing internal barriers to trade, through economies of scale, by establishing and maintaining inter-member unit trade agreements, or by becoming a sufficiently large global player to affect international trade regimes (for the latter regarding the EU, cf. Keohane and Nye 2001, 260).

Federal arrangements may protect individuals against political authorities by constraining state sovereignty, placing some powers with the center. By entrusting the center with authority to intervene in member units, the federal arrangements can protect minorities’ human rights against member unit authorities (Federalist, Watts 1999). Such arguments assume, of course, that abuse by the center is less likely.

Federal arrangements may enhance the political influence of formerly sovereign governments, both by facilitating coordination, and—particularly for small states—by giving these member units influence or even veto over policy making, rather than remaining mere policy takers.

Federal political orders can be preferred as the appropriate form of nested organizations, for instance in ‘organic’ conceptions of the political and social order. The federation may promote cooperation, justice or other values among and within member units as well as among and within their constituent units, for instance by monitoring, legislating, enforcing or funding agreements, human rights, immunity from interference, or development. Starting with the family, each larger unit responsible for facilitating the flourishing of member units and securing common goods beyond their reach without a common authority. Such arguments have been offered by such otherwise divergent authors as Althusius, the Catholic traditions of subsidiarity as expressed by popes Leo XIII (1891) and Pius XI (1931), and Proudhon.

There are several arguments that may apply in favor of federal orders over a unitary state. Among the challenges for some of these arguments is how to allocate authority when there are conflicting claims to provide different benefits for partly overlapping groups; and how to construct overrides in cases of emergencies such as pandemics (Steytler 2021). Who has the power to decide what are exceptions is important, even if we may disagree with Schmitt that it defines who is sovereign (Schmitt 1985).

Federal arrangements may protect against central authorities by securing immunity and non-domination for minority groups or nations. Constitutional allocation of powers to a member unit protects individuals from the center, while interlocking arrangements provide influence on central decisions via member unit bodies (Madison, Hume, Goodin 1996). Member units may thus check central authorities and prevent undue action contrary to the will of minorities: “A great democracy must either sacrifice self-government to unity or preserve it by federalism. The coexistence of several nations under the same State is a test, as well as the best security of its freedom … The combination of different nations in one State is as necessary a condition of civilized life as the combination of men in society” (Acton 1907, 277).

More specifically, federal arrangements can accommodate minority nations who aspire to self determination, political expressions of their sense of shared identity and belonging, and the preservation of their culture, language or religion (Carla 2012). Such autonomy and immunity arrangements are clearly preferable to the political conflicts that might result from such groups’ attempts at secession. Central authorities may respond with human rights abuses, civil wars or ethnic cleansing to prevent such secessionist movements.

Federal orders may increase the opportunities for citizen participation in public decision-making; through deliberation and offices in both member unit and central bodies that ensures character formation through political participation among more citizens (Mill 1861, ch. 15).

Federal orders may facilitate learning by fostering alternative solutions to similar problems and sharing lessons from such a laboratory of ‘experiments in living’ (Rose-Ackerman 1980).

Federations may facilitate efficient preference maximization more generally, as formalized in the literature on economic and fiscal federalism—though many such arguments support decentralization rather than federalism proper. Research on ‘fiscal federalism’ addresses the optimal allocation of authority, typically recommending central redistribution but local provision of public goods. Federal arrangements may allow more optimal matching of the authority to create public goods to specific affected subsets of the populations. If individuals’ preferences vary systematically by territory according to external or internal parameters such as geography or shared tastes and values, federal—or decentralized—arrangements that allow local variation may be well suited for several reasons. Local decisions prevent overload of centralised decision-making, and local decision-makers may also have a better grasp of affected preferences and alternatives, making for better service than would be provided by a central government that tends to ignore local preference variations (Smith 1776, 680). Granting powers to population subsets that share preferences regarding public services may also increase efficiency by allowing these subsets to create such ‘internalities’ and ‘club goods’ at costs borne only by them (Musgrave 1959, 179–80, Olson 1969, Oates’ 1972 ‘Decentralization Theorem’).

Federal arrangements can also shelter territorially based groups with preferences that diverge from the majority population, such as ethnic or cultural minorities, so that they are not subject to majority decisions severely or systematically contrary to their preferences. Non-unitary arrangements may thus minimize coercion and be responsive to as many citizens as possible (Mill 1861 ch. 15, Elazar 1968; Lijphart 1999). Such considerations of economic efficiency and majority decisions may favor federal solutions, with “only indivisibilities, economies of scale, externalities, and strategic requirements … acceptable as efficiency arguments in favor of allocating powers to higher levels of government” (Padou-Schioppa 1995, 155).

Federal arrangements may not only protect existing clusters of individuals with shared values or preferences, but may also promote mobility and hence territorial clustering of individuals with similar preferences. Member unit autonomy to experiment may foster competition for individuals who are free to move where their preferences are best met. Such mobility towards member units with like-minded individuals may add to the benefits of local autonomy over the provision of public services—absent economies of scale and externalities (Tiebout 1956, Buchanan 2001)—though the result may be that those with costly needs and who are less mobile are left worse off.

4. Further Philosophical Issues

Much recent attention has focused on philosophical issues arising from empirical findings concerning federalism (for an overview of such empirical research, cf. Burris 2015), and has been spurred by quite different dilemmas facing—inter alia—Canada, Australia, Nepal, Ethiopia, several European states and the European Union.

The tensions between sovereignty and federalism still pose puzzles, reflected in ‘international’ and ‘national’ understandings of the latter (Schütze 2009). If sovereignty is a unique site of final and independent authority, federal orders cannot be sovereign, since no one has the ‘last word’ on all political matters (Friedrich 1968), and “authority and power are dispersed among a network of arenas” (Elazar 1994, xiii). Another tradition, including Madison (Federalist Paper 39), and more recently Beaud (2009) and Schütze (2009), seeks to square the circle allowing dual sovereignty. Several contributions to the political and legal theory of the European Union resolve these issues in different directions (Bellamy 2019; Schütze 2020).

Federal political orders require attention to several constitutional and other institutional issues. The great variation and how the features interact require careful comparative studies to understand their impact on law and politics (Palermo and Kössler 2017). The design of federal orders raise peculiar and intriguing issues of normative political theory (Watts 1998; Norman 2006).

Composition: How to determine the boundaries of the member units, e.g., along geographical, ethnic or cultural lines; whether establishment of new member units from old should require constitutional changes, whether to allow secession and if so how, etc.

Distribution of Power: The allocation of legislative, executive, judicial and constitution-amending power between the member units and the central institutions. In asymmetric arrangements some of these may differ among member units.

Power Sharing: The form of influence by member units in central decision-making bodies within the interlocking political systems.

These tasks must be resolved taking due account of several important considerations noted below.

As political orders go, federal political arrangements pose peculiar problems concerning stability and trust. Federations tend to drift toward disintegration in the form of secession, or toward centralization in the direction of a unitary state.

Such instability should come as no surprise given the tensions typically giving rise to federal political orders in the first place, such as tensions between majority and minority national communities in multinational federations. Federal political orders are therefore often marked by a high level of ‘constitutional contestation’. The details of their constitutions and other institutions may affect these conflicts and their outcomes in drastic ways. Political parties often disagree on constitutional issues regarding the appropriate areas of member unit autonomy, the forms of cooperation and how to prevent fragmentation. Such sampling bias among states that federalize to hold together makes it difficult to assess often heard claims that federal responses such as granting some local autonomy perpetuate cleavages and fuel rather than quell secessionist movements. Some nevertheless argue that democratic, interlocking federations alleviate such tendencies (Simeon 1998, Simeon and Conway 2001, Linz 1997; cf. McKay 2001, Filippov, Ordeshook and Shvetsova 2004).

Many authors note that the challenges of stability must be addressed not only by institutional design, but also by ensuring that citizens have an ‘overarching loyalty’ or ‘federal spirit’ to the federation as whole in addition to loyalty toward their own member unit (Franck 1968, Linz 1997, Burgess 2012). The legitimate bases, content and division of such a public dual allegiance are central topics of political philosophies of federalism (Norman 1995a, Choudhry 2001). Some accept (limited) appeals to considerations such as shared history, practices, culture, or ethnicity for delineating member units and placing certain powers with them, even if such ‘communitarian’ features are regarded as more problematic bases for (unitary) political orders (Kymlicka 1995, Habermas 1996, 500). Debates about the existence of a ‘European demos’ and the need for a common ‘European identity’ merit more careful scrutiny (Habermas 1992). The appropriate consideration that voters and their member unit politicians should give to the interests of others in the federation in interlocking arrangements must be clarified if the notion of citizen of two commonwealths is to be coherent and durable. Several of these challenges are especially acute for ‘ethnic federalism’ when the member units are delineated along ethnic lines: Any ‘internal minorities’ of other ethnicity risk persecution, the prospects of an overarching loyalty are dimmer, and ethnic nationalism may fuel secessionist movements (Selassie 2003)

Another and related central philosophical topic is the critical assessment of alleged grounds for federal arrangements in general, and the division of power between member units and central bodies in particular, indicated in the preceding sections. Recent contributions include Knop et al . 1995, Kymlicka 2001, Kymlicka and Norman 2000, Nicolaidis and Howse 2001, Norman 2006. Among the important issues, especially due to the risks of instability, are:

How the powers should be allocated, given that they should be used—but may be abused—by political entrepreneurs at several levels to affect their claims. The concerns about stability require careful attention to the impact of these powers on the ability to create and maintain ‘dual loyalties’ among the citizenry.

How to ensure that neither member units nor the central authorities overstep their jurisdiction. As Mill noted, “the power to decide between them in any case of dispute should not reside in either of the governments, or in any functionary subject to it, but in an umpire independent of both.” (1861) Such a court must be sufficiently independent, yet not utterly unaccountable. Many scholars seem to detect a centralising tendency among such courts (Watts 1998).

How to maintain sufficient democratic control over central bodies when these are composed by representatives of the executive branch of member units? The chains of accountability may be too long for adequate responsiveness. This is part of the core concerns about a ‘democratic deficit’ in the European Union (Watts 1998, Føllesdal and Hix 2006).

Who shall have the authority to revise the constitutionally embedded division of power? Some hold that a significant shift in national sovereignty occurs when such changes may occur without the unanimity characteristic of treaties.

The “Principle of Subsidiarity” has often been used to guide the decisions about allocation of power. This principle has recently received attention owing to its inclusion in European Union treaties. It holds that authority should rest with the member units unless allocating them to a central unit would ensure higher comparative efficiency or effectiveness in achieving certain goals. This principle can be specified in several ways, for instance concerning which units are included, which goals are to be achieved, and who has the authority to apply it. The principle has multiple pedigrees, and came to recent political prominence largely through its role in quelling fears of centralization in Europe—a contested role which the principle has not quite filled (Fleiner and Schmitt 1996, Burgess and Gagnon 1993, Føllesdal 1998).

Regarding distributive justice, federal political orders must manage tensions between ensuring member unit autonomy and securing the requisite redistribution within and among the member units. Indeed, the Federalists regarded federal arrangements as an important safeguard against “the equal division of property” (Federalist 10). The political scientists Linz and Stepan may be seen as finding support for the Federalists’ hypothesis: Compared to unitary states in the OECD, the ‘coming together’ federations tend to have higher child poverty rate in solo mother households and a higher percentage of population over-sixty living in poverty. Linz and Stepan explain this inequality as stemming from the ‘demos constraining’ arrangements of these federations, seeking to protect individuals and member units from central authorities, combined with a weak party system. By comparison, the Constitution of Germany (not a ‘coming together’ federation) explicitly requires equalization of living conditions among the member units (Art. 72.2). Presbey argues that ethnic federalism further exacerbates unfair distribution of resources among individuals of different ethnic groups in Africa (Presbey 2003). Normative arguments may also support some distributive significance of federal arrangements, for instance owing to trade-offs between member unit autonomy and redistributive claims among member units (Føllesdal 2001), or the relevance of a shared ‘identity‘ (Grégoire and Jewkes 2015, de Schutter 2011). A central normative issue is to what extent a shared culture and bonds among citizens within a historically sovereign state reduce the claims on redistribution among the member units.

Federalism may increase citizens’ control over matters important to them but also raises several challenges to democratic theory, especially as developed for unitary states. Federal arrangements are often more complex, thereby challenging standards of transparency, accountability and public deliberation (Habermas 2001). The restricted political agendas of each center of authority also require defense (Dahl 1983; Braybrooke 1983). One of several sets of issues concern the standing of member units. Challenging puzzles concern federal orders where some or all units are not internally democratic (for further issues, cf., Norman 2006, 144–150).

The power that member units wield in federations often restricts or violates majority rule, in ways that merit careful scrutiny. Democratic theory has long been concerned with how to prevent domination of minorities, and many federal political orders do so by granting member units some influence over common decisions. Federal political orders typically influence individuals’ political influence by skewing their voting weight in favor of citizens of small member units, or by granting member unit representatives veto rights on central decisions. Minorities thus exercise control in apparent violation of principles of political equality and one-person-one-vote—more so when member units are of different size. These features raises fundamental normative questions concerning why member units should matter for the allocation of political power among individuals who live in different member units. Some of these puzzles are addressed in terms of ‘demoicracy’, especially regarding the European Union (van Parijs 1997, Nicolaidis 2012, Schütze 2020). Thus theorists disagree about whether every EU member state should maintain sovereignty in the sense of enjoying a veto for all decisions (Bellamy 2019, Cheneval et al 2015).

Many federal political orders accommodate minority groups in two ways discussed above: both through a division of power, and by granting them influence over common decisions. These measures of identity politics can be valuable ways to give public acknowledgment and recognition to groups and their members, sometimes on the very basis of previous domination. But identity politics also create challenges (Gutman 1994), especially in federal arrangements that face greater risks of instability and must maintain citizens’ dual political loyalties. Self-government arrangements may threaten the federal political order: “demands for self-government reflect a desire to weaken the bonds with the larger community and, indeed, question its very nature, authority and permanence” (Kymlicka and Norman 1994, 375). The emphasis on “recognition and institutionalization of difference could undermine the conditions that make a sense of common identification and thus mutuality possible” (Carens 2000, 193).

Federations are often thought to be sui generis , one-of-a-kind deviations from the ideal-type unitary sovereign state familiar from the Westphalian world order. Indeed, every federation may well be federal in its very own way, and not easy to summarize and assess as an ideal-type political order. Yet the phenomenon of non-unitary sovereignty is not new, and federal accommodation of differences may well be better than the alternatives. When and why this is so has long been the subject of philosophical, theoretical and normative analysis and reflection. Such public arguments may themselves contribute to develop the overarching loyalty required among citizens of stable, legitimate federations, who must understand themselves as members of two commonwealths.

Several of the historical writings—those marked ‘*’ below and others—are reprinted in part or full in Theories of Federalism: A Reader , Dimitrios Karmis and Wayne Norman (eds.), New York: Palgrave, 2005.

• Brutus, Junius (Philippe Duplessis-Mornay?), 1579, Vindiciae contra tyrannos , George Garnett (transl. and ed.), Cambridge: Cambridge University Press, 1994.
• *Althusius, Johannes, 1603, Politica Methodice Digesta , Frederick S. Carney (transl.), Daniel J. Elazar (introd.), Indianapolis: Liberty Press, 1995.
• Arendt, Hannah, 1972, “Thoughts on Politics and Revolution,” in Crises of the Republic , New York: Harcourt Brace, 199–233.
• Hugo, Ludolph, 1661, De Statu Regionum Germaniae. Helmstadt: Sumptibus Hammianis.
• Saint-Pierre, Abbé Charles, 1713, Projet pour rendre la paix perpêtuelle en Europe (Project to make peace perpetual in Europe), Paris: Fayard, 1986.
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Arendt, Hannah | authority | citizenship | Hume, David | identity politics | Kant, Immanuel | liberty: positive and negative | Mill, John Stuart | Montesquieu, Charles-Louis de Secondat, Baron de | -->Proudhon, Pierre --> | Rousseau, Jean Jacques | sovereignty

Acknowledgements

This entry has benefited from suggestions by Andrea Carla, Federica Cittadino, Philippe Crignon, Dorothea Gädeke, Douglas Klusmeyer, Silje Langvatn, Petra Malfertheiner, Thaddeus Metz, Francesco Palermo, Antoinette Scherz, Robert Schütze, and Katja Stoppenbrink, and from exchanges at a Conference on Federalism 2022 at EHESS, Paris, and at the Eurac institutes for minority rights and for federalism, Bolzano, 2022.

Copyright © 2022 by Andreas Follesdal < andreas @ follesdal . net >

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Library of Congress Catalog Data: ISSN 1095-5054

Our [National] Federalism

abstract . “National Federalism” best describes the modern allocation of state and federal power, but it is a federalism without doctrine. Federalism today comes primarily from Congress —through its decisions to give states prominent roles in federal schemes and so to ensure the states’ continuing relevance in the statutory era. As a result, many of the most significant state sovereign acts now occur through state implementation of federal statutory law, but we have no law to effectuate this account of state authority. This is National Federalism: nationalism and federalism, simultaneous and in tension—and generated entirely by federal statutes. Unlike traditional federalism, it is neither a constant presence nor an entitlement: rather, it is a feature of federal statutory design. But nor does it have the usual trappings of nationalism, because it incorporates experimentation, variety and state historical expertise—the classic “federalism” values—into national law. State sovereignty remains, even if law does not yet recognize it as such. States pass state legislation, appoint new state officials and hear state-law cases in state courts, all as part of their work to implement federal statutory law, but in many ways autonomous from it. Yet, instead of having Chevron -like doctrines that give implementing states more policymaking discretion; or jurisdictional rules that keep more of these cases in state courts; or choice-of-law regimes requiring that state standards of review and state rules of administrative procedure should apply to the state laws enacted by states legislatures that shape the local implementation of federal law in ways unique to each state—instead of all of that, we have a doctrinal muddle and a Court that does not even see these questions as federalism questions in the first place. This essay develops the account of Congress as our primary source of federalism, and re-situates nationalism within that account. It then assembles a list of fifteen unresolved doctrinal questions that reveal the complexity and importance of federalism’s modern statutory domain.

author . Associate Professor of Law, Yale Law School. Special thanks to Heather Gerken for organizing this Feature and for her indefatigable support. Thanks also to Henry Monaghan, Judith Resnik, Ernie Young, Bruce Ackerman, Jon Michaels, the editors of the Yale Law Journal , my co-contributors to this Feature, and Katie Hall, Michael Sparer and the Columbia Mailman School of Public Health, for providing peaceful office space. For research assistance, I am indebted to Emily Barnet, Whitney Leonard, Cynthia Liao, Kathryn Madison, Kathryn Mammel, Kirstin McGuire, Nick McLean, Matthew Reed, Emily Rock, David Simins, and Josh Weiss.

Introduction

There is a simultaneity of nationalist and state-centered impulses in almost every aspect of modern American federal law. But we do not have the theories to recognize it, or the legal doctrines to effectuate it. Federal law is now predominantly statutory law, and the reach of federal statutes into areas of historic state control continues to expand. But this “federal” law has an unmistakably state-centered component: With almost every national statutory step, Congress gives states new governing opportunities or incorporates aspects of state law—displacing state authority with one hand and giving it back with the other.

Federalists should pay attention: In the post-New Deal Era, this role for the states within federal legislation is a primary vehicle through which states have influence on major questions of policy, and through which state sovereign powers retain their relevance, albeit in ways different from those contemplated by the traditional account. Current doctrine is not at all keyed in to the ways in which a very great deal of state sovereign power—including state lawmaking and state-court jurisdiction—is exercised as part of federal statutory implementation, and so current doctrine does nothing to protect or effectuate that state authority. It is not that states do not retain relevance at the local level. But when it comes to most major policy questions, Our Nationalism has become a critical generator of Our Federalism. 1

Federalism also is a key ingredient in Our Nationalism. The modern federal regulatory apparatus is increasingly attendant to questions of the state-federal allocation of responsibility, and also is dependent on state actors, in ways both practical and political. State implementation of federal statutory law and the incorporation of state law within federal statutory schemes are allocation-of-power strategies used by Congress to make federal legislation more effective; but they also restrain the breadth of national control and make legislation more politically palatable. There is something different about national statutory schemes when states have the primary policy and lawmaking roles—something this Essay argues is often, indeed, “federalism.”

This push-pull of nation and state—both from inside the landscape of federal statutes—is more than just an interesting theoretical observation. It is a “law” problem. When it comes to legal doctrines to deal with this new world of statutory federalism, ours is a sorry state of affairs. Modern state-federal relationships have given rise to many new and difficult legal questions— ranging from those of state-versus-federal-court jurisdiction to matters of administrative deference, statutory enforcement, and standards of review. Such questions have split the lower courts, have yet to be resolved by the U.S. Supreme Court, and are affecting how major federal laws are being carried out across the country. Half the time, the courts do not even recognize these questions as federalism questions, even though they unquestionably concern the discretion, influence, and sovereignty of states in a national legal landscape. Robert Schapiro wrote a decade ago that modern federalism lacks “rules of engagement.” 2 We are still muddling through.

This essay makes two principal claims, both intended to provoke discussion. The first is about modern federalism’s primary domain and its source: federalism now comes from federal statutes . It is “National Federalism”—statutory federalism, or “intrastatutory” federalism, as I have called it in the past. 3 One reason for the lack of developed doctrines is the resistance to recognizing that this is where modern federalism comes from and where its primary battlegrounds lie. Courts and scholars for decades have acknowledged the prevalence of “cooperative federalism,” which of course is often generated by overarching federal statutory schemes. 4 Even some traditional federalists have come to recognize the state power to be gained from this interactive, rather than “separate spheres,” model of state-federal relations. 5 But even these expansive inquires have not grappled with the perhaps startling conclusion that follows from recognizing that states today may exert their greatest powers from within these federal statutory endeavors: namely, that this federalism’s primary source is Congress.

Federalism today is something that mostly comes—and goes—at Congress’s pleasure. It is a question, and feature, of federal statutory design. Distinct from the dominant conceptions of federalism and state power, this federalism is neither a constant presence nor an entitlement. It looks different and has various levels of strength across a wide continuum of statutory schemes. But it has important parallels to the federalism of the past, particularly judicial federalism. Just as federal judges once reached for the state common law to fill the interstices of federal lawand to prevent the aggrandizement of lawmaking by the federal judiciary, 6 Congress today reaches for the states to restrain the breadth of federal law and to bring the states’ expertise, variety, traditional authority, and sovereign lawmaking apparatus into federal statutes. Similarly parallel, the Erie questions of our time are not, as they once were, about the choice between state and federal common law but, rather, about how to choose between aspects of state and federal regulatory regimes. The critical choices between state and federal law today concern what rules of statutory interpretation, what standards of review, what administrative-law doctrines, and what other doctrines of statutory law federal courts should apply when they are interpreting state statutes, regardless of whether those state statutes stand alone or are the product of state efforts to implement federal legislation.

Is this federalism? Is this nationalism? It is both . The motivations are simultaneous and in tension. It is a nationalism that often lacks nationalism’s defining theoretical feature—uniformity—and so presses us to ask what “Our Nationalism” is all about, a question that has received scant theoretical attention. It is also a nationalism that incorporates values, like experimentation and local variation, that are traditionally associated with federalism. We have seen this before, in a different form: Paul Mishkin famously described the “variousness” of judge -made federal law. 7 National Federalism recognizes that kind of state-oriented legal diversity in the federal statutes of the modern era.

Similarly, this federalism lacks the traditional appearances of federalism’s defining feature: sovereignty. And it will discomfit some, because this federalism leaves state power to the grace of Congress. Indeed, in some ways, this is the ultimate instantiation of Herbert Wechsler’s classic theory of the “political safeguards of federalism.” 8 Wechsler argued that courts need not police federalism doctrine because the states are adequately represented in Congress. 9 National Federalism goes further, embracing Congress as federalism’s primary source and viewing Congress as having as much, if not more, of a role to play in shaping federalism as do the courts.

But, to be clear, National Federalism is not a federalism shorn of state sovereignty. It is true that National Federalism emerges through congressional displacement of state law with a new, overarching federal statutory scheme. But this federalism depends on, and strengthens, the states’ continuing sovereign status in important ways that have yet to be recognized. 10 When Congress calls on states to implement federal law, states act in their sovereign capacities to do so: They pass new state laws and regulations, create new state institutions, appoint state officials, disburse state funds, and hear cases in state courts—some cases, as I shall illustrate, that have been determined to be hearable only in state courts. It is true that this state action is not wholly separate from federal law; it is shaped by the federal statutes and states often need permission from the federal government to begin a course of federal statutory implementation. But that does not change the fact that, after such approval, the states’ sovereign apparatus acts in ways that are often indistinguishable from the kind of autonomy we see in exclusively state- law domains.

My second claim is about National Federalism’s lack of doctrine. This is a world of federalism-meets-statutory-law, but the doctrines of both federalism and federal legislation, as currently conceived, are unequipped for it. Non-dualist models of federalism have always suffered from a “wishy-washiness” problem when it comes to law—a problem that separate-spheres federalism, which does have some well-defined doctrines, like Commerce Clause doctrine, has not faced nearly to the same extent. 11 Part of the reason is that the vast expanse of writing about interactive federalism mostly has been devoted to functional inquiries about the merits of state-federal interconnectedness, or descriptive efforts illustrating those connections in particular subject-matter areas. 12 But alongside this important work, little attempt has been made to generate “law” effectuating the relationships being described. 13

This is a problem that goes much deeper than the most recent example of it—the Supreme Court’s disappointing declination, in the 2012 health reform case, to devise a real law of federal-state coercion for Spending Clause legislation. 14 It extends, for instance, into the important terrain of federal-state administrative relationships, where we have no doctrines that address whether state implementers of federal law receive any interpretive deference or any “process” when it comes to their interactions with federal agencies. It extends to judicial-power doctrines too, revealing gaping omissions in our laws of federal court jurisdiction and choice of law. One prominent puzzle is the lack of doctrines to determine whether the state laws and regulations that states enact to implement federal statutory schemes (for example, a state’s Medicaid Program, or a Clean Air Act State Implementation Plan) have the status of “federal” or “state” law. Resolving that puzzle is essential to answering other questions about whether state or federal courts have jurisdiction to review cases involving those programs, and if so, whether state or federal substantive law, such as their respective standards of review, is to be applied to them.

Federalism and statutory-law doctrines are equally to blame. On the federalism side, many judges and theorists do not even see most of these as questions to be answered, much less see them as questions of federalism. On the statutory-law side, legislation theory and doctrine have long suffered from a federal-law myopia—a resistance to seeing anyone other than federal actors as the creators and interpreters of federal statutory law—that has left us bereft of interpretive rules that could address these National Federalism relationships. 15 The few federalism-related statutory interpretation presumptions that we do have, moreover, assume state-federal separation, not integration. They also act as one-way ratchets and so are unable to accommodate the idea of a continuum of federalist and nationalist relationships that differ across statutory schemes.

Perhaps most importantly, even if statutory interpretation doctrines could be tailored to recognize these interactive relationships, the legislation doctrines currently lack the teeth to bear the primary burden of effectuating our modern federalism. Congress barely knows the statutory interpretation rules, 16 and so any idea that interpretive presumptions can do the work of protecting federalism in the legislative process—an idea embraced by some of the so-called “process federalists”—is a fantasy. The courts, for their part, do not apply the interpretive rules consistently or even treat them as precedential “law” in the same way that they treat other decision-making regimes (including the implementation doctrines of the Constitution 17 )—a practice that has left the legal status of the statutory interpretation doctrines remarkably unclear, as I have previously detailed. 18 But a federalism that depends on federal statutory design is a federalism that turns on questions of congressional intent. It is a federalism with a key interpretive dimension, and requires real doctrines of statutory law.

The discussion that follows has three main lines of argument. Parts I and II develop the account of Congress as our primary source of federalism, using recent cases and other examples to substantiate the centrality of federalism’s statutory domain. Part III examines nationalism through this lens. Part IV assembles, and begins to frame answers to, fifteen unresolved doctrinal questions at this intersection of federalism and statutory law. 19 Taken together, thequestions reveal the complexity of this domain and the want of coherent legal doctrines to guide this modern expression of our state-federal relationship.

I. national federalism in the court, the congress, and the sovereign states

This Part begins with the story of an old statute that tells us a great deal about modern federalism (and its pedigree) but receives virtually no attention from federalism scholars. Insurance law was once considered exclusively local law. That changed in 1944, when the Supreme Court held that insurance had become interstate commerce and so Congress could regulate it. 20 Congress, however, turned around and immediately gave that power back to the states by federal statute, in the McCarran-Ferguson Act of 1945. 21 That statute declared that the “continued regulation and taxation by the several States of the business of insurance is in the public interest” and announced a new default rule of statutory construction that “silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.” 22 Its enactment rested on all of the traditional federalism reasons, including the historic state control over insurance and the value of local variation.

Since its enactment, McCarran-Ferguson has been consistently invoked by the Court to allow states to do things they could not normally do, like violate the Dormant Commerce Clause, when it comes to insurance regulation. McCarran-Ferguson also has enabled the development of a pervasive and varied web of state insurance law that everyone conceptualizes as state insurance law. That’s federalism by the grace of Congress.

Fast forward to today. Members of the Supreme Court used the word “federalism” in twenty-six cases over the past three completed Terms. 23 Twenty-one of those cases were statutory federalism cases. This quick exercise in counting should be evidence aplenty that National Federalism provides the terrain on which modern federalism’s most salient issues are playing out. Those twenty-one cases involved either state implementation of federal law; or a federal statutory scheme that incorporated reference to, or deferred to, state law or procedures; or other cases in which there was no question about congressional power to regulate in a field of traditional state control and the only issue was the interpretive question of how far Congress intended a particular federal statutory provision to go. Two additional cases concerned the Spending Clause—the primary legislative power Congress has used, after Printz v. United States , 24 to offer states the option to implement federal law— and those cases presented quintessential questions about state-federal relations inside federal statutes. Eight more cases mentioned the word “sovereignty,” but only one of those cases involved anything like “separate spheres” sovereignty; the rest were about the states’ role within federal statutory schemes, or the clarity with which Congress used its acknowledged power to displace state law. 25 Twelve more were statutory interpretation cases about preemption (that did not also mention federalism). 26 The word “nationalism” never came up. 27

Qualitative examples paint the same picture of where we now see “federalism” and how it is that states continue to have national-policy influence in a federal statutory age.For instance, I have previously detailed how state experimentation—the most commonly-touted benefit of federalism—has arguably been better effectuated from states implementing federal statutory schemes than from them acting alone. 28 The state of Massachusetts was the template for health reform not because Massachusetts acted as a sovereign “state as laboratory,” 29 but rather because Massachusetts’s health reform experiment was made possible by a Bush Administration waiver that allowed Massachusetts to be creative in implementing the federal Medicaid program. 30 Many other key policy experiments of the modern era, including the state air-quality innovations accomplished through the federal Clean Air Act, 31 have been conducted in this fashion.

And with respect to state leverage, as another example, the states today that have extracted long-wanted concessions from the federal government to privatize Medicaid are getting their way not by insisting on separation of state and federal but, rather, by exerting their powers fromthe inside , as Medicaid administrators. There is a reason that states do not influence Medicare policy, but do influence Medicaid policy: Congress choseto design only one of those two parallel programs with states at the forefront.

This is not an argument with political priors. Prominent federalism scholar Ernest Young argued years ago that the states’ real power flows more from within these federal schemes than from enforcing areas of exclusive state authority. 32 The conservative economist Douglas Holtz-Eakin recently made the same argument in the health reform context. 33 The reason, as Young put it, is that federal statutory law has gone so far into the terrain of regulating the everyday affairs of the citizenry—from health, to telecommunications, to the environment—that the only way to “ensur[e] that states retain something meaningful to do ”—is to empower them from within national law. 34

A. Recognizing National Federalism—and the State Sovereignty It Effectuates

The Court, however, resists this account. This resistance was on prominent display in the health reform case, National Federation of Independent Business (NFIB) v. Sebelius , 35 in which seven Justices refused to acknowledge the federalism inside federal statutes. The four joint dissenters expressly disputed the proposition that Congress’s decision to allow “state employees to implement a federal program is more respectful of federalism than using federal workers” alone, and asserted that “[t]his argument reflects a view of federalism that our cases have rejected.” 36 Three other Justices, speaking through Chief Justice Roberts, likewise focused only on the “ independent power of the states.” 37 But the Court’s arguments evinced a wish more than reality. The Court unrealistically assumed that erecting barriers to state implementation of federal law will stop Congress from enacting major federal legislation altogether. The New Deal, however, is here to stay. The question is not whether we will have major federal statutes but what the continuing relevance of the states in this landscape will be.

Even more importantly, there are voices beyond the Court’s that are shaping modern federalism. This is a significant development because the Court traditionally has been viewed as the primary arbiter of what federalism is and how it is protected. But Congress is now in the game and recognizes that the modern regulatory state has changed how federalism is generated. Often with explicit references to “federalism,” Congress has dealt with the massive expansion of federal power in part by giving some substantive lawmaking power back to the states through federal legislation. Long before health reform—from the family and old-age assistance programs of the New Deal era, to the environmental statutes of the 1970s, to the recent financial reform legislation 38 —Congress has incorporated state law into federal statutes and asked state actors to serve as frontline federal-law implementers. 39

What is more, as part of Congress’s efforts to give the states substantive lawmaking roles in national schemes, Congress has asked the states to enact their own state laws, create new state institutions, and pass new state administrative regulations—in other words, to exercise their sovereign powers in service of the national statutory project. 40 These congressionally generated opportunities have played a central but unappreciated part in both state identity and how state power is understood on the ground. 41

Republican governors, for example, have argued for state administration of federal health reform as a mechanism for retaining state power to regulate insurance markets. 42 A number of lower courts have held that the state laws implementing the federal Clean Air and Water Acts are just that— state law, not federal in nature. 43 State laws implementing the federal Medicaid statute typically are not called “Medicaid,” but rather “TennCare” in Tennessee and “Husky Health” in Connecticut—evidence of their state-centered identities. This expressive dimension of federalism should not be overlooked; it matters how people experience these laws. 44

Congress also goes beyond state administration of federal law. Congress’s incorporation of state law into federal statutes—moves likewise often made while invoking “federalism” or a desire to restrain the reach of national law—is another species of National Federalism that has gone almost entirely unrecognized. 45 Examples include the provision of the Social Security Act that defines “child” by reference to the state-law definition of it, 46 the provision of the Fair Labor Standards Act that defines “school” in accordance with the state-law definition, 47 the provision of the Travel Act that defines “unlawful activity” to include any prostitution, extortion, bribery or arson offenses “in violation of the laws of the State in which they are committed,” 48 and the Assimilative Crimes Act, which authorizes the use of state law in federal enclaves when federal law is silent. 49

Seeing these incorporative statutes through the eyes of federalism unmasks some obvious linkages between these efforts and those in which Congress puts the states on the frontlines of federal statutory implementation. In particular, Congress may have the same motivations for state-law incorporation as it does for utilizing the states as implementers of federal law: Congress can draw on state expertise by taking well-developed bodies of state statutory or common law on the subject and incorporating them by reference into the new federal statute. Similarly, preserving this state role—whether though state implementation or state-law incorporation—allows for local policy variation within the confines of a new federal statute and in some ways limits the national reach.

I belabor this point about federalism’s statutory domain because some continue to resist it. 50 The needed doctrines will not emerge, however, until we can establish the terrain on which federalism’s main questions are playing out. Very occasionally, there are glimmers in Supreme Court opinions of this recognition. Justice Breyer, for example, in an uncontroversial ERISA case that few federalism aficionados are likely to have noticed, 51 observed that, “in today’s world, . . . the true test of federalist principle may lie, not in the occasional constitutional effort to trim Congress’ commerce power at its edges, . . . but rather in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law.” 52 Justice Kennedy has offered similar hints. In a 2004 case involving a power struggle between state and federal agencies over implementation of the Clean Air Act, Kennedy dissented to propose a new doctrine that would give states more discretion in implementing federal law, even at the expense of the traditionally privileged discretion of federal agencies, calling such a doctrine essential to “cooperative federalism.” 53

Justice Scalia likewise has noticed the shift, but resists the idea that federalism is effectuated by it. In a well-known state-federal dispute over implementation of the Telecommunications Act of 1996, Justice Scalia’s opinion for the Court argued that “preemption” was not the issue in ruling for the federal agency. “[T]he question in these cases,” he wrote, “is not whether the Federal Government has taken the regulation of local telecommunications competition away from the States. . . . [I]t unquestionably has. The question is whether the state commissions’ participation in the administration of the new federal regime is to be guided by federal-agency regulations.” 54 In a case decided last year, however, he called those matters—questions about the states’ discretion in implementing federal statutes and state implementers’ relationships to federal agencies—“faux-federalism.” 55

To be sure, this federalism seems shorn of federalism’s defining features—state sovereignty and clear constitutionally protected domains. It is a federalism whose subject-matter areas are for Congress’s choosing, and from which Congress does not evenly choose. It is a federalism that puts enormous pressure on the famous “political safeguards” concept, because all the power rests in Congress’s hands. The increasing problem of congressional gridlock offers another twist: What does it mean to have a federalism entrusted to congressional action if Congress itself acts rarely and with growing difficulty and partisanship? 56

The idea is not to take a rose-colored view. I do not dispute—indeed, I emphatically agree—that National Federalism does not always empower states (an inquiry complicated by the fact that “state interests” are not uniform 57 ), and that it usually serves to aggrandize national power. I return to those concerns below, but for now the point is that the national impulses in these federal statutes do not mean that the state-centered impulses are not also present.

B. The Doctrines

As it stands, our doctrines of federalism and statutory law are not tuned in to the ways in which states exercise their sovereign powers in the modern federal statutory era. One can envision doctrines designed to elevate this aspect of the states’ role. For example, we might have doctrines that give implementing states more policymaking discretion; or exclusive state-court jurisdiction ; 58 or provide that state-law standards of review and administrative procedure, rather than federal standards, should apply to disputes over state laws and regulations that implement federal statutes.

The final Part of this essay is devoted to these gaps in the doctrine. Part IV sets out a list of fifteen unresolved doctrinal questions related to National Federalism that are percolating in the courts, and that might be answered in ways that emphasize the states’ ownership of much of this federal statutory domain. It is a separate question whether we should empower states in this way, or whether Congress would want to, if asked. This essay does not fully take on those questions, although I will offer some evidence of Congress’s preferences. My goal is different: It is to illustrate, for those focused on state sovereignty or those already convinced of the benefits of federalism, the strong case that can be made for recognizing the state power within these national schemes and exploring the kinds of doctrines that would better effectuate it.

The current federalism doctrines, it is true, have not entirely ignored these questions. But the Court has put almost all of its energy into one particular exercise of state power within federal statutory schemes; the choice by states whether to participate in Congress’s conditional spending programs in the first place. As elaborated below, that set of doctrines is a mess. The Court has refused to draw clear lines to demarcate when such programs are unconstitutionally coercive. 59 It also has used as its overarching theoretical framework for these questions the idea that states and the federal government are in a “contractual” relationship. But the Court has inconsistently deployed that framework and not deeply considered its implications for broader questions about the relationship. 60

Even if that set of doctrines were clear, placing all of the doctrinal emphasis on the question of the states’ free choice to participate in federal programs gives short shrift to the intense political and sovereign dynamics that play out when states deliberate over federal implementation. For example, will a state cabinet position need to be created? Will state officials need to be authorized with new powers? Such an emphasis also underplays the importance of the many kinds of state-federal interactions that occur even before the federal statute is enacted, as part of the federal statutory-design process. As others have detailed, during that process, states—often acting in groups, through horizontal federalist entities such as the National Governors Association—use their leverage as would-be implementers to put their imprint on how the ultimate federal policy will look. 61

The usual alternative to state participation in these federal programs, moreover, is not “sovereignty.” The federal government will step in to operate the programs for the states. If states decline to implement the Clean Air Act, states do not retain authority to shape that aspect of environmental law. The federal government will come in and implement that same federal law—but in accordance with federal, not state, policy preferences.

Finally, it should be stated that our doctrines of statutory interpretation have not completely ignored federalism either. But the few statutory-law doctrines that do train on federalism—the federalism “clear statement rules” and presumptions about federalism and preemption—are dinosaurs from the age of the separate spheres. Those presumptions, as Justice Scalia’s opinion in the Telecommunications Act case observed, are understood as obstacles to the initial federal displacement of state law—default rules requiring ambiguous statutes to be construed not to preempt state law. 62 They are not generally used (although they may potentially be) to manage state-federal relationships once state law has unquestionably been displaced and both state and federal actors have interpretive authority within the same federal statute. The other relevant doctrines of statutory interpretation—those concerning agency implementation of federal law—apply only to federal actors, a weakness that I have detailed elsewhere. 63 Those federal administrative law doctrines treat state implementers as if they do not exist.

II. the centrality of federalism’s statutory domain

A brief excursion into the cases in which the Court explicitly invoked “federalism” or state “sovereignty” during the last three Terms establishes the centrality of federalism’s statutory domain and some of its unresolved doctrinal questions. The end of this Part introduces an additional form of National Federalism not reflected in these cases and that the Court does not recognize. I refer here to federal judicial interpretation of state statutory schemes, the modern-day instantiation of the Erie doctrine and a central aspect of federal judicial review of state implementation of federal law.

A. National Federalism in the Cases

Of the twenty-six times that members of the Court invoked “federalism” over the last three Terms, six occurred in ordinary statutory interpretation/preemption cases. Preemption cases do not raise questions about Congress’s power to legislate over state terrain, or even about its power to legislate on the particular subject at hand; they merely raise questions about how clearly Congress speaks to the particular issue in question. 64 In other words, they are questions of federal statutory design. This category of six cases includes Arizona v. United States , the high-salience “federalism” challenge to Arizona’s immigration law. 65

Other cases invoked federalism in less familiar ways. For example, in United States v. Windsor , 66 the challenge to the federal Defense of Marriage Act, the Court invoked “federalism” not as an impermeable barrier to congressional legislation in the historic state terrain of domestic relations but as something of a resistance norm— a feature requiring special consideration when judging Congress’s intervention. 67 (Justice Scalia called this “amorphous federalism” in his dissent. 68 )Another was City of Arlington v. FCC , the telecommunications case discussed above in which Justice Scalia’s opinion for the Court, crying “faux federalism,” rejected the idea that federalism comes into play in questions about the division of labor between state and federal agencies implementing the same federal statute. 69

Another high-salience case, Shelby County v. Holder , concerned the special federal preclearance requirements applicable to only certain states under the Voting Rights Act. 70 The Court repeatedly used the term “sovereignty,” but not to dispute the power of the federal government to interfere with the states’ control over their own elections. Rather, the Court used the term to emphasize that “all States enjoy equal sovereignty”—apparently within the confines of federal law. 71 Federal intrusion was not the main problem; the fact that it applied unequally (without justification, in the Court’s view) to various states was. Another case, J. McIntyre Machinery, Ltd. v. Nicastro , was the first major case in decades to consider a state’s personal jurisdiction over an international defendant. 72 The plurality went out of its way to surmise that Congress could authorize nationwide jurisdiction to modernize the current state-power-oriented landscape of personal jurisdiction. 73

AT&T Mobility LLC v. Concepcion was a statutory preemption case, too, but is worth singling out because that case involved the construction of the Federal Arbitration Act’s “savings clause.” 74 Savings clauses are explicit, exceedingly common, and typically overlooked examples of National Federalism: Congress singles out particular aspects of state law to survive or interact with federal law within a new overarching federal statutory scheme. 75 In Concepcion , Justice Breyer’s dissent seized on the FAA’s savings clause, invoked the idea that “states are sovereigns,” and argued that by using the clause, Congress embraced a “federalist ideal” and “reiterated a basic federal idea that has long informed the nature of this Nation’s laws.” 76

Another nine of the twenty-six “federalism” invocations, plus two more mentions only of “sovereignty,” were habeas cases. 77 This is worth pausing over, because even though habeas was the primary example used in Robert Cover and Alexander Aleinikoff’s seminal work on “dialectical federalism,” 78 one rarely sees habeas integrated into modern-day discussions of cooperative federalism. 79 Particularly relevant is that almost all of these recent habeas cases have a strong National Federalism component: the interplay between state and federal law in many of these cases is a matter of federal statutory design, through Congress’s choice in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to, in the Court’s words, “promot[e] comity, finality, and federalism” by building deference to state procedures into the federal statute. 80

Other cases raised, but did not resolve, new federalism questions. Wos v. E.M.A. , 81 for example, raised the question of whose job it is—the state’s, the federal agency’s, or the Court’s—to fill gaps in cooperative statutory schemes when the statute (there, Medicaid) is silent. The majority, through Justice Alito, decided the statutory question itself, and did not defer to either state or federal implementers. 82 Justice Breyer concurred specially to emphasize that the federal agency should make that decision, even though the federal agency actions in the case were informal and the state itself had relied on previous, contradictory, informal federal guidance. 83 Chief Justice Roberts dissented for three Justices, called Medicaid a “state program,” and concluded that “the whole point of our federal system is that different States may reach different judgments about how to run their own different programs.” 84

In another case, Virginia Office of Protection & Advocacy v. Stewart , 85 the Court raised but did not answer the question of Congress’s power to “affect the internal operations of a State,” 86 or to give state actors power they would not otherwise have under state law. 87 This same question has been raised—but likewise not yet answered—in the context of the health reform legislation, which directs the states to enforce new insurance provisions, even though some state laws do not already give that power to state officials. 88 It remains unresolved whether federal law alone can give state-created entities authority that they do not possess under state law. 89

The enforcement of National Federalism programs posed different problems for the Court. Douglas v. Independent Living Center raised the question whether California citizens could challenge their state’s implementation of the federal Medicaid statute when the federal agency itself had not chosen to challenge the state’s action. 90 The Court focused on the federal agency’s actions, and implied (but did not definitively conclude) that federal agency approval (or inaction) with respect to state implementation would typically shield states from these kinds of challenges by their own citizens, even where the federal agency does not exercise robust oversight.

Indulge a final pair of examples: the two Spending Clause cases that the Court decided during this period—the health reform case, NFIB v. Sebelius , 91 and a sovereign immunity case, Sossamon v. Texas . 92 Much could be said about these cases, but for present purposes, the point is to highlight the inadequacy of the doctrines invoked by the Court, particularly its use of the “contract” metaphor to describe the federalism relationships created by Spending Clause statutes. The question in the health reform case was the typical National Federalism question of whether the way in which Congress exercised its undisputed power to expand a federal program (there, Medicaid) was respectful of state “sovereignty.” Stating that Spending Clause legislation “was in the nature of a contract” 93 between two sovereigns, the Court held that Congress’s Medicaid expansion was too “dramatic” to have been anticipated by the states. 94 But the contract analogy in the end was of little help to devising real doctrinal rules. Instead, the Court adopted no test at all, holding: “We have no need to fix a line . . . . It is enough for today that wherever that line may be, this statute is surely beyond it.” 95 Justice Ginsburg’s dissent chided the Court for failing to come up with a doctrine that could be applied in the future. 96

The second case, Sossamon , presented the question whether a state’s receipt of federal funds sufficed to waive sovereign immunity for suits for money damages (there, under the Religious Land Use and Institutionalized Persons Act of 2000). In holding that Texas had not waived its immunity, the Sossamon Court backed off the contract analogy, but commented only briefly on the use of the contract framework as a linchpin in the opinions from the Fifth and Eleventh Circuits being reviewed—and the confounding way in which the federal programs there had been described. The Fifth Circuit had held that “Spending Clause legislation is not legislation in its operation; instead, it operates like a contract.” The Eleventh Circuit likewise used this distinction to treat the question of the private right of action differently from the case of “ordinary” legislation. 97

B. Statutory Federalism in Judicial Review of State Statutory Schemes

There is another type of unrecognized statutory federalism—this one not generated by Congress—that comes into play when federal courts adjudicate state statutory-law questions. This set of cases is arguably the heir of Erie , the case that forms one of the cornerstones of traditional federalism doctrine. Notably, Erie itself stems from an instance of National Federalism. The Erie case involved the interpretation of the Rules of Decision Act (RDA), a federal statute that directs courts to use state law as the rule of decision unless federal law expressly directs otherwise. 98 Coming at the dawn of the New Deal, however, Erie was about the choice between judge-made federal common law and the repository of state law, which at the time also was largely judge-made. Today, because statutory law dominates the state legal landscape just as it dominates the federal landscape, the Erie question has also necessarily evolved.

Today, when federal courts review state law questions (whether under their diversity jurisdiction, or as related to matters implicating their federal-question jurisdiction—including as part of reviewing state implementation of federal law) the difficulty is less in “finding” the state law than in interpreting it. As I have previously detailed, state courts have their own, unique approaches to statutory interpretation, administrative review, and other matters—some of which are different from the federal approach and often bring state-law-oriented values to bear. 99

Federal courts, however, do not see in their Erie obligation an obligation also to apply the same interpretive principles to state statutes as the state courts would. When it comes to state statutes that implement federal law, federal courts likewise overlook other state decision-making regimes, such as standards of review. Nor do they see in those cases a federalism opportunity —a chance to give effect to the sovereign choices made by the states in the design of their own statutory terrain. I have made the case before why Erie should indeed be understood to apply to those interpretive questions (just as the Erie doctrine already is understood to require federal courts to apply other state-law decision-making regimes). 100 Instead, the federal approach to interpreting state law has effectively been a massive exercise in federal judicial preemption: Each case results in (a likely unintended) displacement of state statutory and interpretive norms by the federal normative preferences that come from the application of the federal statutory doctrines.

On the reverse side, too, state courts bring their diverse perspectives to the task of interpreting federal statutory law. Congress has assigned a few limited areas to the federal courts’ exclusive jurisdiction but, otherwise, state courts sit with equal authority and duty as any federal appellate court to hear any federal statutory claim. 101 Simply because state courts hear so many more cases than federal courts, they play a key role in filling the interstices of federal statutory law. Scholars for decades have argued that, when federal courts adjudicate state-law cases, they cannot help but bring their federal-law sensibilities to that task—a fact that leads to some harmonization and nationalization of state statutory law. 102 Similarly, and in reverse, it must be the case—even though it remains under the radar—that state-court federal statutory interpretation leads to a more diverse and local set of meanings about federal statutory law than would a system of exclusive federal court jurisdiction. 103

III. our nationalism

Skeptics may be thinking that National Federalism is really just an attempt at national-law aggrandizement, and a deceptive one at that. The Court has repeatedly worried that these statutory schemes improperly diffuse accountability away from the federal government, 104 and I myself have previously argued that these state-based schemes are powerful vehicles of subtle federal statutory entrenchment. 105

But it also should be obvious that even such nationally oriented motivations have federalism within them. The idea that some members of Congress trust their home-state counterparts to administer federal law more than they trust the executive branch (particularly the executive branch of the opposing party)—an idea that has some empirical support 106 —depends on the notion that these administrators are not all equal. It is true that the localness of the way in which these programs are encountered complicates the concerns about accountability to which National Federalism schemes give rise. Critics may be correct that National Federalism diffuses accountability, but maybe exclusive federal accountability is undeserved; that is, perhaps the states should be held at least partially responsible for those aspects of the implementation that are, in fact, state programs. If California chooses to pay doctors less in its version of Medicaid than does New York, why not hold California accountable? With sovereignty comes responsibility.

What does all of this mean for theories of nationalism? More aptly, what is Our Nationalism? The word “federalism” comes up 610 times in the Westlaw Supreme Court case database. The world “nationalism” comes up only thirty- three times, and not once in ways that concern federal statutory law or that otherwise have any relevance to the kinds of questions posed by this essay. 107 While these statistics may be unsurprising—talk of “nationalism” makes courts uncomfortable because of its strong connotations of centralization—academics rarely talk about it either. 108 Whereas “federalism values” like variation and experimentation are heavily utilized concepts, we have no common theory of nationalism.

On the other hand, the word “uniformity” comes up 1,407 times in the Westlaw Supreme Court database as a justification for congressional policies or for certain types of judicial decisions. It may well be that uniformity is the value most often associated with nationalism, particularly in the context of congressional legislation. But uniformity no longer seems a useful concept to anchor theories of nationalism when many major federal statutes give states frontline roles precisely because Congress desires dis uniform implementation of national law. Values like experimentation, variation, and tailoring to local circumstances are also now integral components of nationalist policy making.

There is a noteworthy parallel to draw between the way in which Congress has thus expanded national power and the way in which the federal courts did the same in an earlier era. Paul Mishkin’s famous work on the “variousness of ‘federal law’” made the case that, in filling gaps in federal statutes, the federal common law work of federal courts need not be, and in fact should not be, completely “federal” in nature. 109 Drawing instead on the traditional federalism values, including local variation and the background norm of federal restraint, Mishkin argued that consideration of those values should drive federal judicial decisions about when to take state law as the rule of decision—for example, applying a state-law definition for an undefined federal statutory term.Voluntary federal judicial incorporation of state law, Mishkin argued, helped to avoid an “unwarranted intrusion into areas traditionally and properly regarded as state domain.” 110 Following Mishkin, Carol Goldberg-Ambrose took this point into the realm of federal-court jurisdiction, suggesting “nationalism” reasons why Congress might wish to create federal-court jurisdiction over certain questions, but still use state law as the substantive rule of decision. 111

The link to National Federalism should be clear. When Congress incorporates state law rather than creating new federal categories, or when Congress offers the states a primary federal implementation role, it is making federal law with some self-conscious restraint and building diversity into it. That restraint may be motivated by instrumental reasons—including a desire to push federal law into areas of historic state dominance—or by “federalism” reasons. Most likely it is both. Work like Mishkin’s has shown the internal state-centered diversity of federal law for some time, and National Federalism continues in that tradition. Likewise, and in connection with Goldberg-Ambrose’s work, one can see in National Federalism a motivation on the part of Congress, too, to assert some federal control over the system but, at least sometimes, to build the states into it.

It also seems evident that we sometimes have nationalism in lawmaking without Congress or federal judge-made law at all. This is a point that goes beyond the way that the states, as centers of political activity, influence public debate through their positions on federal statutes in which they have no formal role. 112 John Nugent and Judith Resnik have each written about how groups of state and even translocal actors together play central roles in federal statutory politics. 113 States also do sometimes still act as first-movers, performing their traditional “states as laboratories” role, in trying out controversial policies. 114 Sometimes, such state innovation even creates what might be understood as a different kind of “national law”—what William Eskridge and John Ferejohn have described as an informal fifty-state convergence that makes federal legislation unnecessary. 115

Other times, those state convergences take on a more formal character, for instance when one state models its laws on those of another. A striking example can be found in a slew of recent state food safety laws, which condition the effective date of the state law on the adoption of a similar law by a number of other states. 116 State courts also must sometimes create federal common law. 117 Another example of more formal action exists in the adoption by many states of Uniform Laws. The Uniform Commercial Code is the most prominent but only one of many such laws. These Uniform Laws exemplify how “national law”—law sometimes even more uniform than federal statutory law that depends on varied state implementation—can be created by states, without Congress.

The point is not to undersell the other ways in which states contribute to the national landscape or to minimize the continuing benefits of local governance in areas that Congress has not entered. My argument is also in some ways the opposite of arguments by scholars like Heather Gerken, whose important work views “federalism” as a means to a national end—a way of churning the system to reach an “ideal” national policy solution. 118 This essay, instead, takes continuing variety and state power as the end worth preserving and aims to convince states-rights theorists that nationalism is one important means to it. Of course, Congress will sometimes shut off that state variety—straight preemption is always an option. But the alternative to National Federalism is not state autonomy; it is more Washington-controlled federal legislation.

The point is that nationalism, like federalism, now takes different forms. How “national” any federal statute is, in the uniformity/preemption sense, will vary across the U.S. Code. It is for that reason that the details of the federal statutory design—from which we can infer where on the spectrum Congress intends a particular statutory scheme to lie—must now take on greater significance.

IV. national federalism without doctrine: fifteen unresolved questions

This Part sets out fifteen unresolved doctrinal questions to which National Federalism has given rise, and which, in many cases, already are dividing the lower courts. Undoubtedly, there are other questions that could be added to the list, and this introductory exposition shortchanges the depth of analysis that any one of these questions is due. But there is value to assembling the questions in one place, as the start of a doctrinal agenda that needs to be tackled. The discussion divides the questions into four groups—focused on, respectively, state-federal regulatory interaction; the utility of the contract framework; state sovereignty; and the challenges of using statutory interpretation doctrine as the primary legal regime for this domain.

There are also normative matters that cannot be addressed here and on which lawyers will disagree—most importantly, the extent to which legal doctrine should actually try to enable state power within these statutory schemes, even if Congress so intends. This list of questions, instead, is based on three potentially controversial premises: first, that Congress sometimes does intend for states to have discretion when implementing federal statutory law—an assumption that has an empirical basis, but merits more verification; 119 second, that Congress is entitled to, and should, play this role in generating modern federalism; and third, that if federalists recognize federalism’s statutory domain, they should be interested in doctrinal solutions that give greater effect to state power within federal statutory schemes.

A. Questions Related to the Relationship Between State and Federal Implementers and Congressional Intent to Delegate

It should not be necessary to make the case for how important the doctrines of administrative deference are to questions of statutory interpretation and implementation. Chevron , the Court’s flagship deference doctrine, is one of the most cited cases in history, and the significance of the interpretive authority that the Court has given to federal agencies, as Congress’s purported delegates, has been detailed by hundreds of commentators. 120 But the Court has never resolved the question whether deference is available when multiple agencies are involved—even when the question involves only multiple federal agencies. 121 The Court also has steadfastly refused to answer the question whether federal agencies may receive Chevron deference for federal-agency actions that would preempt state law. 122 And the Court has never considered anything like deference to state (or private) implementers of federal law, even though some lower courts have granted such deference. Nor has the Court addressed the question of what, if any, process might be due to the states when they are negotiating with federal agencies, whether informally or through the administrative waiver process, about their joint role in implementation. 123

1. Does National Federalism Suggest There Should Be a Chevron Deference Regime for State Implementers of Federal Law?

The Court does not recognize any kind of interpretive deference for state implementers of federal law, despite indications that Congress sometimes does intend for states to have discretion. Particularly puzzling about the Court’s federal-law myopia in this context is that, when it comes to federal agencies, the Court does take a more congressionally-focused and varied approach that would map well onto an account that includes state implementers.

I refer to United States v. Mead Corp. , 124 in which the Court narrowed its broad reading of Chevron —which previously had operated as an across-the-board presumption of interpretive deference whenever statutes were ambiguous—and instead adopted a more nuanced understanding of deference as a varying feature of congressional practice; very much as I have described National Federalism as a feature of federal statutory design. With explicit recognition of the complexities of the modern administrative state, the Court in Mead moved to “tailor deference to [the] variety” of ways in which Congress delegates. 125 Chevron , as modified by Mead , however (despite the emphasis on legislative reality), suffers from the same federal-law bias as the other statutory interpretation doctrines and does not include nonfederal implementers.

If the Court is serious about linking deference to congressional intent, there is evidence that Congress does sometimes intend to defer to state implementers. Congress writes state implementation flexibility directly into some provisions of federal law. The health reform statute mentions state “flexibility” six times; 126 its state-administrative waiver provision is expressly titled “Waiver for State Innovation, ” 127 and similar waiver provisions are scattered across the U.S. Code. Congress also makes direct delegations to the states and offers broad federal grants to states in which the given federal agency’s role is limited mostly to administering the federal-to-state financial flows. 128

My recent study of congressional drafting, with Lisa Bressman, offers the first empirical evidence that drafters of federal legislation sometimes do intend for states to have implementation flexibility and sometimes explicitly intend for them to have interpretive deference on a level with Chevron . 129 The congressional staffers surveyed also emphasized that the extent of the intended state roles varies across statutes. Seen through the lens of National Federalism, it should come as no surprise that some staffers reported that states are intended to have more salient roles in federal statutes operating in areas of historic state authority. 130

Some lower courts have grappled explicitly with the idea of a Chevron for the states. 131 Some courts have rejected deference, arguing that only federal agency approval matters. 132 Other courts have argued that “ Chevron ’s policy underpinnings emphasize . . . the need for coherent and uniform construction of federal law nationwide. Those considerations are not apt to a state agency.” 133 Still other courts have argued that Chevron ’s expertise rationale does not apply because “[s]tate agencies have no expertise in interpreting federal law.” 134

Putting aside the fact that these kinds of arguments lack the kind of focus on congressional intent to delegate that the Court embraced in Mead , these cases also overlook the reason that Congress looks to the states in the first place. Unlike in the case of simple federal agency administration, uniformity is often the opposite of the goal when states have primary roles. So too, although state agencies may lack “federal law” expertise, Congress often relies on states because the law being implemented covers an area of historic state expertise, making states qualified to fill in policy gaps.

The possibility of deference for state implementers is not an easy question. States actors are not accountable to Congress or the President as federal agencies are and that alone might be a reason for eschewing Chevron -like deference for them. Congress also does not intend to give states the same kind of policy making discretion across all statutes, so there cannot be a single, consistent answer to this question even if courts did wish to effectuate congressional intent. But if the doctrinal focus is going to be on congressional intent, some level of deference (even if something less than Chevron ) is worth exploring.

2. Does National Federalism Help to Resolve Questions About Whether There Should Be Deference to Multiple Implementers of Federal Law?

Congress often simultaneously charges federal agencies with implementation duties alongside the states. This question of multiple delegations obviously complicates a “ Chevron for the states” analysis, because when a federal agency is also involved—particularly when the areas of state and federal responsibility overlap—Congress’s preferences on questions of uniformity, accountability and expertise may be less clear.

The bigger baseline problem raised by this question is that the Court does not have any kind of framework to evaluate questions of multiple implementers, even when only federal agencies are involved. Some courts that have considered the question have held that the presence of multiple federal implementers means Chevron deference for none . Chief Justice Roberts himself highlighted this doctrinal gap in a dissent last year. 135

Here, too, Mead ’s emphasis on congressional intent and statutory variety helps to chart a course. The Gluck-Bressman drafting study, for instance, found empirical evidence that drafters of federal legislation sometimes do intend to delegate to more than one implementer simultaneously. 136 Sometimes the multiple implementers are all federal; other times they are mixed. 137

Even in the federal-only context, multiple delegations still raise questions (indeed many of the same questions) concerning what kind of accountability, uniformity, and expertise deference doctrine is supposed to further. These are questions that require exploration and the difficulty of which I do not minimize. It may be the case that when it comes to multiple implementation (whether all federal or mixed), matters like accountability may trump Mead ’semphasis on congressional intent; the point is that we have yet to see any such conversation at the Court.

3. Does National Federalism Require Some Restraint on Federal Agencies When They Attempt to Preempt or Otherwise Direct State Implementation of Federal Law?

What all of these unresolved matters have in common is that they go to the ability of states to flex their muscles in the implementation of federal statutory law and to the relationship between state actors and federal agencies in that endeavor. Others have previously illustrated that, even if one buys into the idea of the political safeguards of federalism, those political safeguards are lacking when it comes to federal agencies, where the staff is usually federal-law and uniformity focused and states are not represented. 138

As the doctrine currently stands, federal agencies have almost unrestrained power to make all of the critical allocation decisions. The Court’s most recent statement at the intersection of Chevron and federalism, the City of Arlington case discussed in Part II, extends the deference accorded federal agencies even further, to include questions of the agency’s jurisdiction, even when state law would be affected by that decision. 139 The federal statute in that case also contained an express “savings clause” for the preservation of state law, like those discussed in Part II. 140 It is not a great leap from Arlington to the idea that federal agencies, armed with Chevron deference, could interpret statutes in ways that would constrain state flexibility in statutory schemes that Congress intended as internally federalist (or vice versa, making statutes more internally federalist than Congress may have intended 141 ). Cases like Arlington reveal the deep tension between two of the Court’s favorite interpretive rules: Chevron deference for federal agencies and the presumptions that favor federalism for the states. 142

To be sure, it would be difficult for courts to make these allocation choices themselves, particularly because they vary across statutes. More onus might be put on Congress to make its intentions clear. As one promising example, in the recent Dodd-Frank financial reform legislation, Congress took the rare step of expressly prescribing the deference level it desired for federal agencies to have on questions of preemption, and chose the lesser, Skidmore level of deference. 143

4. Does National Federalism Suggest There Should Be Procedural Protections for State-Federal Regulatory Negotiations, Including but Not Limited to the Statutory Waiver Process?

Relatedly, there are “process” issues. Returning to the example of the ongoing health reform implementation, many state officials have complained about making time-sensitive implementation decisions without formal guidance from federal agencies about what the agencies ultimately would require. 144 States hesitated to implement the law for fear that work undertaken would later be displaced by conflicting federal regulations, and HHS has often used informal processes in dealing with the states, even on key matters of implementation. 145

Even in the context of administrative waivers—an important vehicle of state flexibility written explicitly into many federal statutes—there is a mysterious informality to the process, with most of the critical interactions happening as behind-the-scenes negotiations rather than through any formal, transparent procedure. No scholarly treatment appears to have considered, through the lens of process, precisely how the state-federal waiver practice works, even though scholars recently have begun to see waivers as significant vehicles of federalism. 146 Erin Ryan’s important work, which argues for the application of bargaining theory to all aspects of the state-federal negotiations, comes closest. 147

5. How Do Federal Agencies Interact with State Sovereign Acts in Service of National Federalism Schemes? Could Federal Agency Action Displace State Legislation Implementing Federal Law?

A related question concerns the balance-of-power between federal agencies and state governments. The Court recently held, in National Cable & Telecommunications Ass’n v. Brand X Internet Services , that a federal agency interpretation of an ambiguous federal law could displace a prior judicial interpretation of that same law. 148 The Court maintained its stylized federal-actor-only perspective when deciding Brand X , but the case raises potentially explosive questions about how federal agency implementation intersects with the exercise of state sovereignty in federal statutory implementation—because state governments implement federal law, too. Does Brand X mean that, if a state legislature has passed a state law to implement a federal statute, a later federal agency interpretation could effectively nullify it?

No one would assume that a federal agency action could displace a congressional enactment. But this same issue, on the state legislative enactment side, has raised questions. Outside the health law context, for instance, a bill has been repeatedly introduced in Congress to “prevent unilateral actions by the EPA that second-guess the decisions of the state regulatory agency” and remedy the “atmosphere of regulatory uncertainty.” 149 National Federalism may cast more light on this Brand X question, by highlighting the extent to which it is state sovereign activity—like state legislation—that is in danger of being displaced. A few lower courts have acknowledged this potential distinction, and held that statutory ambiguity is not enough to sustain later federal agency action to displace state law in cooperative schemes. 150

B. Questions About Using the Contract Framework to Analyze State-Federal Intrastatutory Relationships

6. is spending clause legislation “legislation,” “contract,” or both.

Of all of the questions on this list, the ambiguity of the “contract” metaphor may be most surprising. Congress’s power to spend for the general welfare has been its primary vehicle in the post- Printz era to entice states to enlist as implementers of federal programs, and the idea that this kind of legislation is essentially a “contract” has provided at least the rhetorical grounding for some of the highest profile federalism decisions from the Court in recent years, including the cases discussed in Part II. 151 Indeed, it is really the only theoretical framework, apart from preemption, that the Court has utilized to describe this modern terrain.

Part II already set out the ambiguity: courts have vacillated between whether the “contract” metaphor is a metaphor, or is intended to describe the actual status of the state-federal agreement, or is only intended to describe the context of the states’ choice to participate (the last option, in my view, is probably the correct limitation). In the end, it has served only to confuse.

The suggestion that these statutes are not “law” on the same level as other pieces of legislation makes little sense. And it is not how these statutes are actually treated with respect to other legal questions. For example, contracts have their own principles of interpretation, and those principles are not the same as the principles of statutory interpretation that courts apply to federal legislation, including to Spending Clause legislation. 152 The Court also still applies Chevron deference to federal agency interpretations of Spending Clause legislation, but the courts do not otherwise allow federal agencies to modify the terms of federal contracts based on their own interpretive or policy preferences. Samuel Bagenstos offers other examples, including that Spending Clause legislation goes through the same, constitutional bicameralism and presentment process as any other federal law, 153 and that “[if] spending conditions are not ‘law,’ . . . those conditions [could not] preempt inconsistent state laws under the Supremacy Clause.” 154

7. Does the Contract Framework Tell Us Whether States Are More “Special” than Private Implementers of Federal Law?

The second big question for the contract framework is whether it really serves to highlight the sovereignty of the states in the ways that the courts seem to intend. Congress increasingly does “contract” with private entities to implement aspects of federal law. It does not appear that the Court has deeply engaged the question of how those private contracts might differ from the “contracts” between states and the federal government, but it seems doubtful that courts would hold them on the same level. Private delegations do not result in the kind of law- and regulation-making processes that state delegations spur. Nor are contracts with private implementers eligible for agency deference. The contract metaphor is deployed to elevate the position of the states in the legal analysis. But understanding these cooperative schemes as mere contracts may actually cheapen the contributions of the states—particularly insofar as it fails to differentiate them from the efforts of private entities.

C. Questions that Concern the Sovereignty of States Within Federal Statutory Schemes

As the foregoing pages have detailed, there is a great deal of what normally would be considered state sovereign activity that occurs when states implement federal statutory law. In the context of health reform, for example, at least 32 states have already passed state laws or taken regulatory action to implement the Medicaid and insurance marketplace provisions of the federal Act. 155 Nearly every state has created or empowered a state entity or commission to evaluate the state’s options or begin implementation. 156 All of these state actions were incentivized by federal law, but the precise forms they took—for example, whether Medicaid was expanded by state law or state regulation or how many insurers have been allowed to sell plans—varied across the states and depended on individual state constitutional and statutory authorizations. State courts will hear challenges to the operation of these regimes for years to come, and many of those challenges will implicate the details of state law on matters ranging from rules about procurement to state constitutional rights.

Law does not currently recognize these state sovereign actions as something that “federalism” doctrine might protect. A more state-centered approach might elevate the state character of these actions—privileging state courts, state substantive law, even mechanisms to further state accountability—than an approach that would emphasize the federal counterparts to these options. My aim is not to choose among the approaches here but, rather, to frame the kinds of inquiries that National-Federalism-oriented doctrines might undertake.

8. What is the Legal Status of the New Institutions and Laws Created by National Federalism? Are They Federal, State, or Both?

When it comes to what these state actions “are,” the case law is a muddle. As Young has pointed out, there remains deep judicial confusion about whether the “state implementation plans” that states must pass to implement the federal Clean Air Act have state-law or federal-law status for purposes of matters such as the subject-matter jurisdiction of the federal courts. 157 Similar questions arise with respect to state water quality standards, passed as state legislation, but to implement the federal Clean Water Act ; 158 and to whether telecommunications agreements approved by states pursuant to their regulatory authority under the federal Telecommunications Act of 1996 give rise to federal questions. 159 The Second Circuit has held that “there is no authority anywhere supporting the proposition that a state Medicaid regulation becomes a federal law merely by virtue of its inclusion in a state plan required by federal law.” 160 And, with respect to federal statutes that incorporate state law by reference, others have detailed the state of indecision among lower courts about the related question of whether challenges to the state-law components of those statutes give rise to state or federal jurisdiction. 161

This question about the “identity” of the state actions and institutions generated by National Federalism is the first-order inquiry on which the answers to countless other doctrinal questions depend. As the questions that follow illustrate, courts cannot draw lines between state and federal court jurisdiction, or choose whose law applies, or determine how the statutes should be enforced without first making a determination about the state or federal character of these actions.

9. Do Questions Involving the State Laws and Institutions of National Federalism Give Rise to Federal or State Court Jurisdiction, or Both?

As already noted, there is divergence among the courts, and even within courts, about when questions involving state implementation of federal law invoke the subject matter jurisdiction of the federal courts. Part of the problem is that the Supreme Court’s own basic federal-question-jurisdiction jurisprudence is so mushy. In its most recent sustained treatment, Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing , the Court declined to adopt a “single, precise all-embracing test” 162 for state law claims implicating federal questions. Instead the Court articulated several other factors, including whether the federal issue is necessarily arising and substantial, and whether the question is of the sort that “a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” 163 Of particular relevance, the Court also put some emphasis on congressional intent, holding thatasserting federal jurisdiction must be “consistent with congressional judgment about the sound division of labor between state and federal courts governing the application of § 1331,” the federal question statute. 164

Under Grable , were the courts focused on National Federalism, one might predict a massive shuttling of these statutory federalism cases into state courts. It is true, as Resnik has argued, that the current “language of federal jurisdictional law—describing cases as having ‘federal ingredients ’”—in some ways “captures the many instances in which state and federal laws overlap,” 165 but the Court has declined to hold that every case with substantial federal elements gives rise to federal jurisdiction. 166 Moreover, the federal courts are unlikely to want the hundreds of state-law cases implementing federal statutes—cases that often involve run-of-the-mill state-law issues such as matters of contracting and personnel. 167 To that end, consider this statement from the Second Circuit, which held, in declining jurisdiction over a challenge to New York’s Medicaid law, that to decide otherwise “would provide a jurisdictional basis for federal judicial review of every disputed state administrative ru ling relating to Medicaid.” 168 Recognizing the state’s ownership over these aspects of federal law implementation would keep such cases out of the federal courts—a result that most federal judges likely would prefer; that arguably would reinforce state autonomy within these schemes; 169 and to which Grable and the Court’s cases that have followed seem to point. 170

The counterargument is that if one has concerns about state-centered rebellion 171 or too much variety in implementation, recognizing the federal-law underpinnings of these statutory schemes might allow a federal, harmonizing, “protective” influence over their on-the-ground implementation. 172 In the end, the recent balancing-test approach to federal jurisdiction that Grable adopts may, indeed, be better suited to the kind of continuum of federalism and nationalism that I have described than a set of bright-line rules. The current test, however, is too imprecise and inconsistently applied. More importantly, it is not well aimed at the kinds of questions to which National Federalism gives rise. For instance, courts generally do not ask whether preserving a (perhaps exclusive) role for state courts to decide these cases furthers state autonomy within national statutory schemes, or how the tension between nationalist and state-centered impulses within a particular statute might affect the answer to that question. 173

10. Do State or Federal Legal Doctrines, Such as Standards of Review, Apply to State Laws and Institutions that Are Part of National Federalist Statutory Schemes?

Then there are the choice-of-law questions detailed in Part II, questions that courts do not appear to recognize as federalism questions in the first place. These are different questions from questions about whether federal courts should take jurisdiction; these questions are about what decision-making regime—state or federal—applies, regardless of which court is deciding the case.

I have previously documented how federal courts fail to apply state interpretive principles to state statutory questions, and how that practice is inconsistent with Erie. 174 A recent student note likewise chronicled how federal courts apply federal administrative law principles, including requirements of the federal Administrative Procedure Act, even when they are reviewing implementation by state agencies of cooperative federalism schemes. 175 When it comes to deference, many states have their own, different principles of agency deference from the federal regime—including some states that prohibit any deference at all 176 —but some lower federal courts have applied federal deference doctrines to state agency implementation of federal law. 177

This doctrinal disarray presents at least two different kinds of “federalism” issues. As an initial matter, identical forms of state action in service of federal law are being reviewed in different ways in different cases, depending on which court is hearing the case. This is precisely the kind of cross-court inequity that the Erie doctrine aims to avoid. Second, from the perspective of developing doctrines to reinforce the sovereign actions of states within national schemes, many of these choice-of-law decisions are missed federalism opportunities. Courts that apply federal law to matters concerning the state regulatory apparatus miss the chance to build into federal statutory law more of the kind of diversity that Congress may have intended by looking to the states in the first place. Those courts also fail to recognize, and so undermine the autonomy of, what may be some fundamentally “state” actions—actions that merit the application of state legal standards—within the national implementation process.

11. How, if at all, Should National Federalism Statutes Be Enforced Against the States?

When it comes to how these federal schemes can be enforced against state implementers, that case law, too, is unsettled. The Court seems torn, or perhaps not focused, on what kind of accountability the doctrines should further.

Enforcement is a complex area that implicates many other strands of the Court’s case law (for example, the Court’s precedents concerning when it will imply a right of action) and so complete treatment cannot be given here. Suffice it to offer two cases that illustrate different approaches to accountability in this context. In the Douglas case, discussed in Part II, the Court effectively shielded California from a challenge to its Medicaid program because the federal agency had approved the program. Compare Douglas to U.S. Department of Energy v. Ohio , an older case in which the Court held that state-law-created fines, enacted as part of state implementation of the Clean Water Act and approved by the federal agency, did not “arise under federal law” for purposes of triggering enforcement of the fines against the United States. 178 In Douglas , the state action was effectively federalized; in the other it was not. As I already have suggested, a state-sovereignty-focused perspective on National Federalism also might point toward making states more accountable than the courts often do for their roles in these schemes, because at least some of those actions would be understood as the states’ own.

12. Can Congress, Through National Federalism Statutes, Give State Actors Powers They Do Not Have Under State Law?

Finally, there are questions that implicate this state/federal ambiguity but that are trained on the power of Congress, not the courts. One important illustration was discussed in Part II—the question of whether Congress can give state actors powers that they do not have under their own state laws. 179 At the broadest level, as Jim Rossi has pointed out, when Congress delegates to state agencies, it does not seem to consider the fact that some state constitutions prohibit agency delegations entirely. 180 But also with respect to specific delegations, it remains unanswered whether Congress can imbue state actors with administrative authority that they otherwise do not have under state law and what the precise nature of that authority would be. In the federal housing law context, for instance, the question has arisen whether federal housing laws can empower local housing agencies to use procedures that state laws prohibit. 181 Answering these questions likewise requires a developed account of what exactly the states are doing within these federal schemes, including whether and when they are exercising state powers.

D. Questions About Federalism as a Doctrine of Statutory Interpretation

The last category of questions arises from conceptualizing federalism as a phenomenon over which Congress has primary control. This theoretical reorientation puts enormous pressure on the rules of statutory interpretation to serve as the key doctrines of the state-federal relationship. But those doctrines fall short in multiple ways, ranging from their inattention to congressional intent and statutory variety to their floppiness as legal rules.

13. Do Current Federalism Statutory Interpretation Doctrines Really Aim to Effectuate Congressional Intent?

Our current federalism-focused rules of statutory interpretation are black-and-white rules that have no empirical grounding in congressional intent, and in any event work only to separate state and federal law, not to negotiate their interaction. They rarely see federalism as existing in varied, uneven fashion across the federal statutory landscape, much less see that variety as tethered to questions of congressional intent and federal statutory design. As such, these doctrines stand in stark contrast to the Court’s efforts, in the administrative law context, to “tailor deference to [the] variety” of ways in which Congress legislates. 182 National Federalism posits multiple forms of “federalisms” 183 (and nationalisms) that a set of “on/off” interpretive doctrines cannot capture.

The presumption against preemption and the other federalism canons, for instance, have no apparent empirical grounding in congressional preferences. The federalism-reviving Rehnquist Court of the 1980s devised and utilized these presumptions to bring judicially -preferred federalism values to bear on its interpretive process, a strategy that some have called quasi-constitutional law, and others have called under-the-radar judicial lawmaking. 184 Since then, the Court has deployed the convenient fiction that these canons not only reflect important constitutional norms, but are background norms that Congress shares and against which it is reasonable to assume that Congress legislates.

Some “process federalists” have seized on this account. These process theorists are the closest we have to theorists of National Federalism—because they understand Congress’s central role in establishing the state-federal allocation, rely on “the states’ representation in Congress as the primary means of protecting state sovereignty, and envision[] judicial intervention only to ensure that this process is functioning properly. ” 185 Some process theorists thus embrace the canons of statutory interpretation as rules that should govern the game. 186 But Congress is generally uninterested in and ignorant of these interpretive rules, in part because the courts apply them too inconsistently for them to serve as the basis of coordinating interbranch behavior. The canons cannot serve as rules of the game if Congress does not know them and if the Court does not give them the legal teeth to incentivize Congress to learn them. Perhaps the best we can say is that they are judicially imposed policies, but that court-centric perspective is not well suited to a federalism that is so linked to questions of congressional federal statutory design.

My recent congressional drafting study offers evidence confirming the suspicion that congressional staffers know few of the canons of statutory interpretation. The Court’s so-called “clear statement rules”—rules that require Congress to use special “magic words” to make known its intentions on high salience issues like federalism—fared particularly poorly under empirical scrutiny. The study found near complete ignorance of those rules, 187 an enormous problem because the ostensible goal of clear statement rules is to provide the Court and Congress with a shared language so that Congress can make its intentions with respect to federalism known.

Regardless, these doctrines operate as one-way ratchets; each assumes that the scale should tip in the same direction every time (almost always toward states), an assumption belied by both the variety of forms that National Federalism takes and the often-simultaneity of both federal and national impulses within a single statutory scheme. In recent years, the Court has made some small moves that show the promise of expanding the doctrines’ capacity. In one of the Voting Rights Act cases decided last term, for instance, the Court reversed the presumption against preemption for that particular statute, a move it has likewise effectively made for the Federal Arbitration Act 188 (but again the presumption still operates in one direction; now, toward nationalism). Outside the federalism context, as I have detailed elsewhere, the Court deploys more than a hundred subject- or statute-specific rules of statutory interpretation, such as the presumption that ambiguities in the Bankruptcy Code be construed in favor of the debtor, or that exceptions to the Tax Code be narrowly construed. 189

These small efforts to disaggregate what have been mostly sweeping interpretive presumptions have not been widely noticed, and it is too soon to know if it is a trend that will continue. The greater the number of these rules, moreover, the more the risk of unbearable legal complexity. But the Court openly utilizes a variety of interpretive doctrines for the common law, and even the Constitution. Wh a t i s r e m ar k a b l e i s t h a t a s i ng l e se t o f g e n era l l y a pp li ca b l e p res u m p ti onsh a sdo m i n a t e d t he s t a t u t o r y l a nd sca pe f or s o l ong. It seems possible that these subtle recent efforts by the Court to differentiate among the doctrines evince a maturation of the Court’s understanding of the kinds of law needed for a statutory age: an evolution toward a set of rules that, like National Federalism, recognize the diversity across statutes that one would naturally expect in a legal landscape dominated by them. 190

14  Would National Federalism Doctrines Of Statutory Interpretation Be Real “Law”? If So, What Kind Of Law, And Could Congress Overrule It?

The biggest problem, however, may be that these interpretive doctrines are not much of “doctrines” at all. Even if the doctrines of statutory interpretation could be better tailored to individual federal statutory designs, the entire regime of statutory interpretation suffers from an overarching jurisprudential ambiguity that could be fatal to any theory of federalism that rests on it. The rules of statutory interpretation do not have a clear legal status. It is a puzzle whether they are law, judicial philosophy or something in between. 191 Even when a majority of Justices agrees on an interpretive principle in a particular case, that principle is not viewed as “law” for the next case, even when the same statute is being construed. Instead, courts and scholars routinely refer to the canons as “universal” principles” or “rules of thumb”—a sharp divergence from the way in which they treat analogous decision-making principles, including those of constitutional law (where doctrines like the tiers of scrutiny and also federalism doctrines, like the Commerce Clause test, are treated as precedential law).

I have previously criticized in detail the resistance to treating statutory interpretation methodology as “law.” 192 For present purposes, the point is not to resolve the question of the legal status of these interpretive presumptions or whence they derive. Rather, the point is to establish that the legal status of these rules is indeed in question and that, regardless of their status, application of the rules does not receive precedential effect. Another question that remains unresolved is the very big question of what role exactly it is that these rules—and by extension, the courts—are supposed to perform in the interpretive endeavor. It remains uncertain, for instance, whether the federalism presumptions are supposed to reflect how Congress drafts, affect how Congress drafts, or simply layer judicial/constitutional values atop Congress’s work product. Each is a very different aim, from the standpoint of how much courts should interfere with the legislative process or of which branch controls questions of state-federal intrastatutory allocation. The legal status of the doctrines also has profound implications for the question of who can change them. Understood as common law, or even as “constitutional common law,” Congress could override the doctrines by statute; 193 understood as constitutional law or as something internal to the individual judge (and so not law at all), Congress could not.

However one comes down on these questions, it would be odd to give the great weight of federalism’s doctrinal regime to a set of presumptions that most judges currently view as mere “rules of thumb.” This is not to say that statutory interpretation must go it alone—other efforts, such as finding ways to add more state-centered voices to the legislative or administrative process would offer a political response, rather than a doctrinal one. But from the perspective of one who believes that a role for courts should persist even in this political context, for the doctrines of legislation to play a central role of effectuating National Federalism, they need to be doctrines .

15. How Might National Federalism Be Affected by Ongoing Methodological Disputes, Such as the Dispute Between Textualist and Purposivist Judicial Interpreters?

Finally, at a more granular level, the intersection of congressional intent and federalism also will make current methodological disputes about statutory interpretation more relevant to these critical allocation-of-power questions. As a parallel example, in the context of preemption, scholars have described that the Court deploys that doctrine in ways more attendant to statutory purposes than to text. 194 So too, in the National Federalism context, the foregoing pages have demonstrated how the different Justices have approached the interpretive questions. Justices Stevens, Ginsburg, Breyer, and even Chief Justice Roberts have been more willing to see the federalism inside federal statutes than have more textualist Justices like Justice Scalia, even though textualist judges have often been more federalist. Justice Scalia wants clear direction and bright lines—a desire incompatible with a Congress that legislates with gaps for administrative flexibility 195 and that utilizes states in varied ways across different statutes.

Conclusion: Our National Federalism

Federalism has come into the statutory age, but without the doctrines it requires. Today, it is Congress that decides the major questions of state-federal allocation and it is the role of the states within federal statutory schemes that ensures the states’ enduring relevance. The states in turn have evolved their own identities, continuing to pass state laws, appoint state regulators, and hear cases in state courts—all sovereign acts, but ones put into motion by national law rather than as alternatives to it. This National Federalism is not easy. It is dynamic, uneven, and dependent on questions of federal statutory design and the whims of politics. But the difficulties are no excuse for the lack of law to answer National Federalism’s many open questions. Our Federalism (and Our Nationalism) depends on it.

Volume 133’s Emerging Scholar of the Year: Robyn Powell

Announcing the eighth annual student essay competition, announcing the ylj academic summer grants program, this essay is part of a feature, federalism as the new nationalism.

A dialogue among a new school of federalism scholars

Federalism as the New Nationalism: An Overview

From sovereignty and process to administration and politics: the afterlife of american federalism, the loyal opposition, the shadow powers of article i, negotiating conflict through federalism: institutional and popular perspectives.

Younger v. Harris, 401 U.S. 37, 44 (1971) (coining the “slogan” of “Our Federalism”).

Robert A. Schapiro, Toward a Theory of Interactive Federalism , 91 Iowa L. Rev. 243, 285 (2005).

Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond , 121 Yale L.J . 534 (2011).

For just a few examples, see William W. Buzbee, State Greenhouse Gas Regulation, Federal Climate Change Legislation, and the Preemption Sword , 1 San Diego J. Climate & Energy L. 23 (2009); Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation , 106 Mich. L. Rev. 567 (2008); David A. Super, Laboratories of Destitution: Democratic Experimentalism and the Failure of Antipoverty Law , 157 U. Pa. L. Rev . 541 (2008); and Matthew C. Waxman, National Security Federalism in the Age of Terror , 64 Stan. L. Rev . 289 (2012).

See Ernest A. Young, Two Cheers for Process Federalism , 46 Vill. L. Rev. 1349, 1377-86 (2001).

For the classic description, see Paul J. Mishkin, The Variousness of “Federal Law”: Competence and Discretion in the Choice of National and State Rules for Decision , 105 U. Pa. L. Rev . 797, 828-32 (1957).

Id . (arguing that federal judges have discretion to, and often should, choose state law to fill gaps in federal schemes).

Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government , 54 Colum. L. Rev. 543, 559-60 (1954).

For a different view, see Jessica Bulman-Pozen, From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism , 123 Yale L.J 1920 (2014).

See Erin Ryan, Federalism and the Tug of War Within: Seeking Checks and Balances in the Interjurisdictional Gray Area , 66 Md. L. Rev. 503, 515-16 (2007); Schapiro, supra note 2, at 248.

See, e.g. , Buzbee, supra note 4; Super, supra note 4; Waxman, supra note 4.

For a notable exception, see Erin Ryan, Negotiating Federalism , 52 B.C. L. Rev. 1 (2011), which applies bargaining theory to state-federal administrative relationships.

See infra notes 91-96 and accompanying text.

I have previously detailed this federal-centricity in legislation theory and doctrine. See Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine , 120 Yale L.J . 1898 (2011) [hereinafter Gluck, Intersystemic Statutory Interpretation ]; Gluck, supra note 3; Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism , 119 Yale L .J. 1750 (2010).

See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I , 65 Stan. L. Rev. 901 (2013) (presenting the results of the largest empirical study to date of congressional staff statutory drafting practices and knowledge of the rules of statutory interpretation).

For example, Constitution-implementing doctrines like the tiers of scrutiny, the Commerce Clause test, and the various tests for implementing the First Amendment are understood as precedents that receive stare decisis effect. See Gluck, Intersystemic Statutory Interpretation , supra note 15, at 1915-16. Some call these doctrines constitutional law, others call them “constitutional common law,” but no one disputes that they are “law.” See Richard H. Fallon, Jr., Implementing the Constitution 5 (2001); Mitchell N. Berman, Constitutional Decision Rules , 90 Va. L. Rev. 1, 9, 167 (2004); Henry P. Monaghan, The Supreme Court 1974 Term — Foreword: Constitutional Common Law , 89 Harv. L. Rev . 1, 2-3 (1975).

See Gluck, Intersystemic Statutory Interpretation , supra note 15; Abbe R. Gluck, The Federal Common Law of Statutory Interpretation: Erie for the Age of Statutes , 54 Wm. & Mary L. Rev . 753 (2013).

This essay’s use of the term “federalism’s domain” and its fifteen unresolved doctrinal questions aim to evoke Thomas W. Merrill and Kristin E. Hickman’s outstanding article, Chevron ’s Domain , 89 Geo. L.J. 833 (2001), which took the doctrinal pulse of Chevron at a critical moment.

United States v. Se. Underwriters Ass’n, 322 U.S. 533, 552-53 (1944).

Pub. L. No. 79-15, 59 Stat. 33 (codified at 15 U.S.C. §§ 1011-1015 (2012)).

15 U.S.C. § 1011.

In nine of those cases, “federalism” was invoked only by concurring or dissenting Justices.

521 U.S. 898, 935 (1997) (holding that states could not be required to enforce federal regulatory programs) .

Two of the cases involved federal habeas law—federal statutory law that includes deference to state procedures for “federalism” reasons . See Trevino v. Thaler, 133 S. Ct. 1911 (2013); Harrington v. Richter, 131 S. Ct. 770 (2011). Three others involved the construction of specific state powers under federal statutes—the Family and Medical Leave Act of 1993 (FMLA), the Voting Rights Act of 1965 (VRA), and the Prison Litigation Reform Act (PLRA)—that indisputably already displace much other state law. Coleman v. Court of Appeals of Md., 132 S. Ct. 1327 (2013) (FMLA); Perry v. Perez, 132 S. Ct. 934 (2012) (VRA); Brown v. Plata, 131 S. Ct. 1910 (2011) (PLRA). The most “classic” use of sovereignty was in McBurney v. Young , 133 S. Ct. 1709 (2013), a case about the rights accorded to out-of-state citizens under Virginia’s own freedom of information law. See also S. Union Co. v. United States, 132 S. Ct. 2344, 2361 (2012) (Breyer, J., dissenting) (invoking sovereignty to argue that Apprendi v. New Jersey , 533 U.S. 466 (2000), should not apply to criminal fines because states should have power to control judicial discretion on matters of criminal justice). The final case, Hollingsworth v. Perry , 133 S. Ct. 2652 (2013), gave short shrift—as Justice Kennedy argued in dissent, see id. at 2675 (Kennedy, J., dissenting)—to arguments that states, as sovereigns, should be able to determine who has standing to bring challenges to state law, even in federal courts.

Maracich v. Spears, 133 S. Ct. 2191 (2013); Am. Trucking Ass’ns v. City of Los Angeles, 133 S. Ct. 2096 (2013); Hillman v. Maretta, 133 S. Ct. 1943 (2013); Dan’s City Used Cars, Inc. v. Pelkey, 133 S. Ct. 1769 (2013); Nitro-Lift Techs., LLC v. Howard, 133 S. Ct. 500 (2012); Kurns v. R.R. Friction Prods. Corp., 132 S. Ct. 1261 (2012); Marmet Health Care Ctr., Inc. v. Brown, 132 S. Ct. 1201 (2012); Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011); Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527 (2011); Chamber of Commerce of the U.S. v. Whiting, 131 S. Ct. 1968 (2011); Williamson v. Mazda Motor of Am., Inc., 131 S. Ct. 1131 (2011); Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068 (2011). One additional case, Astrue v. Caputo ex rel. B.N.C. , 132 S. Ct. 2021 (2012), invoked preemption with regard to the choice between a state- or federal-law definition of an unclear statutory term. See id. at 2030, 2032. Another concerned the preemptive effect of an interstate compact. See Tarrant Reg’l Water Dist. v. Herrmann, 133 S. Ct. 2120 (2013).

This list was produced by a search of the Westlaw Supreme Court Case Database for any cases decided between Oct. 1, 2010 and June 30, 2013 containing the terms “federalism,” preempt!,” “nationalism,” “nationalist,” or “ Erie, ” or not containing one of those terms but containing the terms “sovereign!,” “state law,” or “spending clause.” For cases containing the term “sovereign!” a research assistant extracted only those cases discussing state (rather than international) sovereignty. For cases containing the term “spending clause,” I extracted only those cases discussing Spending Clause legislation involving states.

See Abbe R. Gluck, Federalism from Federal Statutes: Health Reform, Medicaid, and the Old-Fashioned Federalists’ Gamble , 81 Fordham L. Rev. 1749, 1753-65 (2013); Gluck, supra note 3, at 566-68. Many others have lamented traditional federalism’s shortcomings at experimentation. See Yair Listokin, Learning Through Policy Variation , 118 Yale L.J. 480, 552 (2008); Susan Rose-Ackerman, Risk Taking and Reelection: Does Federalism Promote Innovation? , 9 J. Legal Stud. 593, 594, 610-11 (1980); Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis , 41 UCLA L. Rev . 903, 925-26 (1994); Super, supra note 4 .

For the classic statement of this “federalism” value, see New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory.”).

See 2006 Mass. Acts ch. 58; Ryan Lizza, Romney’s Dilemma , New Yorker, June 6, 2011, at 38, 40.

See Train v. Natural Res. Def. Council, 421 U.S. 60, 64-65 (1974).

See Young, supra note 5.

See Douglas Holtz-Eakin, Yes to State Exchanges , Nat’l Rev., Dec. 6, 2012, http:// http://www.nationalreview.com/articles/334956/yes-state-exchanges-douglas-holtz-eakin .

Young, supra note 5, at 1385.

132 S. Ct. 2566, 2607 (2012) (opinion of Roberts, C.J., joined by Breyer & Kagan, JJ.); id. at 2666-67 (Scalia, Kennedy, Thomas & Alito, JJ., dissenting).

Id. at 2660.

Id . at 2578 (opinion of Roberts, C.J.) (emphasis added).

See generally Suzanne Mettler, Dividing Citizens: Gender and Federalism in New Deal Public Policy (1998) (discussing Old Age Assistance and Aid to Dependent Children programs); William W. Buzbee, Asymmetrical Regulation: Risk, Preemption, and the Floor/Ceiling Distinction , 82 N.Y.U. L. Rev . 1547, 1550 (2007) (discussing environmental legislation); Gluck, supra note 3 (discussing health care legislation).

Congress has also established a variety of statutory schemes that build in deference to state procedures, such as the Anti-Injunction Act, which restricts federal power to enjoin state-court proceedings. Judiciary Act of 1793, ch. 22, § 5, 1 Stat. 334 (codified as amended at 28 U.S.C. § 2283 (2012)). My primary interest here, however, is with the substantive-law manifestations of National Federalism.

This is not just a modern phenomenon. See Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829 , 116 Yale L.J . 1636, 1649-50 (2007) (documenting cooperative federalism in the early republic). But its pervasiveness and its emergence at least in part as a response to the aggrandizement of the national statutory state is a modern occurrence.

Cf . Judith Resnik, Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: “The Political Safeguards” of Aggregate Translocal Actions , 156 U. Pa. L. Rev. 1929, 1947 (2008) (arguing that judicially created doctrines like Erie “help shape the identity, integrity, and autonomy of state law”).

See, e.g. , David McGrath Schwartz, Sandoval Takes Moderate Approach to Health Care Law , Las Vegas Sun (July 14, 2012), http://www.lasvegassun.com/news/2012/jul/14/sandoval -takes-moderate-approach-health-care-law (“Nevada ‘must also plan for a health insurance exchange so that we—and not the federal government—control the program,’ [Gov.] Sandoval said . . . .”).

See infra notes 157-158 and accompanying text.

Cf. Ernest Young, The Constitution Outside the Constitution , 117 Yale L.J. 408 (2007) (arguing that these kinds of statutory moves are constitutive of constitutional understandings).

Scholars have focused on two types of legal questions raised by these incorporated laws—how federal courts should ascertain the state law in question and whether these hybrid statutes give rise to state or federal court jurisdiction, or both—but not on the federalism considerations that might lead to this form of statutory design in the first place. See Henry Paul Monaghan, Supreme Court Review of State-Court Determinations of State Law in Constitutional Cases , 103 Colum. L. Rev . 1919, 1935-47 (2003); Lumen N. Mulligan, Jurisdiction by Cross-Reference , 88 Wash. U. L. Rev. 1177, 1179 (2011); Radha A. Pathak, Incorporated State Law , 61 Case W. Res. L. Rev. 823, 824-25, 842-47 (2011).

42 U.S.C. § 416(h)(2)(A) (2006).

29 U.S.C. § 203(v)-(w) (2012).

18 U.S.C. § 1952(b)(1) (2012).

18 U.S.C. § 13. For elaboration of examples from the criminal context, see Wayne A. Logan, Creating A “Hydra in Government”: Federal Recourse to State Law in Crime Fighting , 86 B.U. L. Rev . 65, 84-101 (2006).

See, e.g ., Malcolm M. Feeley & Edward Rubin, Federalism: Political Identity and Tragic Compromise 20-29 (2008) (calling this phenomenon “decentralization,” not federalism).

Again, Ernest Young is a notable exception. See Ernest A. Young, “The Ordinary Diet of the Law”: The Presumption Against Preemption in the Roberts Court , 2011 Sup. Ct. Rev. 253, 254.

Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 160-61 (2001).

Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 518 (2004) (Kennedy, J., dissenting).

AT&T Corp. v. Iowa Util. Bd., 525 U.S. 366, 379 n.6 (1999).

City of Arlington v. FCC, 133 S. Ct. 1863, 1873 (2013).

Cf . Bradford R. Clark, Separation of Powers as a Safeguard of Federalism , 79 Tex. L. Rev. 1321, 1371 (2001) (arguing that “gridlock” supports federalism norms because it prevents federal legislation) .

See Judith Resnik, Joshua Civin & Joseph Frueh, Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs) , 50 Ariz. L. Rev . 709, 775 (2008).

Cf. Carole E. Goldberg-Ambrose, The Protective Jurisdiction of the Federal Courts , 30 UCLA L. Rev. 542, 577 (1983) (discussing the decrease in state autonomy, by virtue of the diminished role of state courts, caused by expansive constructions of federal-court jurisdiction).

NFIB , 132 S. Ct. 2566, 2606 (2012) (opinion of Roberts, C.J., joined by Breyer & Kagan, JJ.).

See Samuel R. Bagenstos, Spending Clause Litigation in the Roberts Court , 58 Duke L.J . 345, 384-85 (2008).

For examples of this process, see generally John D. Nugent, Safeguarding Federalism: How States Protect Their Interests in National Policymaking ( 2009); and Resnik et al., supra note 57, at 749-51.

But see Young, supra note 51, at 272-74 (arguing that the presumption should also be understood to apply to the scope of preemption).

See Gluck, supra note 3, at 553-64.

Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247, 2256-57 (2013); id. at 2260-61 (Kennedy, J., concurring in part and concurring in the judgment); Fowler v. United States, 131 S. Ct. 2045, 2052 (2011); id. at 2056 (Scalia, J., concurring in the judgment); CSX Transp., Inc. v Ala. Dep’t of Revenue, 131 S. Ct. 1101, 1112 (2011).

132 S. Ct. 2492 (2012).

133 S. Ct. 2675 (2013).

Id. at 2691.

Id. at 2707 (Scalia, J., dissenting).

133 S. Ct. 1863, 1873 (2013).

133 S. Ct. 2612, 2618, 2620 (2013).

Id. at 2618; see also id. at 2621, 2622, 2624, 2630 (same).

131 S. Ct. 2780, 2785 (2011).

See id. at 2790.

131 S. Ct. 1740, 1746 (2011).

See Sandra Zellmer, Preemption by Stealth , 45 Hous. L. Rev . 1659, 1732 (2009) (cataloguing savings clauses across the U.S. Code and arguing that narrow construction of such clauses “undermines congressional policy in . . . federal-state relations”).

Concepcion , 131 S. Ct. at 1762 (Breyer, J, dissenting); see Judith Resnik, Fairness in Numbers: A Comment on AT&T v. Concepcion , Wal-Mart v. Dukes , and Turner v. Rogers, 125 Harv. L. Rev . 78, 112-18 (2011) (arguing that the Court gave the statute a preemptive meaning that Congress likely never intended).

Ryan v. Schad, 133 S. Ct. 2548 (2013); McQuiggen v. Perkins, 133 S. Ct. 1924 (2013); Trevino v. Thaler , 133 S. Ct. 1911 (2013); Martinez v. Ryan, 132 S. Ct. 1309 (2012); Maples v. Thomas, 132 S. Ct. 912 (2012); Gonzalez v. Thaler, 132 S. Ct. 641 (2012); Cullen v. Pinholster, 131 S. Ct. 1388 (2011); Skinner v. Switzer, 131 S. Ct. 1289, 1298 (2011) (discussing the interplay between cases brought under 42 U.S.C. § 1983 and habeas); id . at 1301 (Thomas, J., dissenting) (“[P]rinciples of federalism and comity are at stake when federal courts review state collateral review procedures.” (internal brackets and quotation marks omitted)) ; Wall v. Kholi, 131 S. Ct. 1278 (2011); Harrington v. Richter , 131 S. Ct. 770 (2011).

Robert M. Cover & T. Alexander Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court , 86 Yale L.J. 1035 (1977).

For example, a search of the Westlaw database for articles in which the terms AEDPA and cooperative federalism appeared two times each produced just three articles, none of which engaged the issue.

Pinholster , 131 S. Ct. at 1401. AEDPA is layered atop the Court’s own federalism-respecting common law habeas regime, which also plays a role in many cases. See Martinez , 132 S. Ct. 1309 (primarily concerned with application of the judicially created doctrines); Maples , 132 S. Ct. 912 (same). But see Mark Tushnet & Larry Yackle, Symbolic Statutes and Real Laws: The Pathologies of the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act , 47 D uke L.J. 1 (1997) (arguing that AEDPA is mostly symbolic legislation).

133 S. Ct. 1391 (2013).

Id . at 1402.

Id . at 1403-04 (Breyer, J., concurring).

Id . at 1408.

131 S. Ct. 1632 (2011). The main question in the case was whether an independent state agency created to implement a federal statute could sue state officials for violations of federal law in federal court.

Id . at 1641.

Id. at 1641 n.7 (citing id . at 1644 (Kennedy, J., concurring) and raising the question).

See Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1002, 124 Stat. 119, 138 (2010) (to be codified at 42 U.S.C. § 300gg-93), amended by Health Care and Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029; State Approval of Health Insurance Rate Increases , Nat’l Conf. St. Legislatures, http://www.ncsl.org/research /health/health-insurance-rate-approval-disapproval.aspx (last updated Sept. 2013) ( observing that some state regulators lack the resources or legal authority to adequately report on premium increases); States Implement Health Reform: Premium Rate Reviews , Nat’l Conf. St. Legislatures ( Dec. 2010), http://www.ncsl.org/documents/health/HRPremium .pdf [hereinafter Premium Rate Reviews ].

Robert Pear & Kevin Sack, Some States Are Lacking in Health Law Authorit y, N.Y. Times , Aug. 14, 2010, http://www.nytimes.com/2010/08/15/health/policy/15insure.html ; Premium Rate Reviews , supra note 88.

132 S. Ct. 1204 (2012). A post-argument change in procedural posture occasioned by the agency’s formal approval of California’s decision simplified the original question in the case, which concerned whether a private right of action could be implied under the Supremacy Clause for a citizen suit alleging that the state implementation conflicted with federal law. See id. at 1207.

132 S. Ct. 2566 (2012).

131 S. Ct. 1651 (2011).

NFIB , 132 S. Ct. at 2660 (Scalia, Kennedy, Thomas & Alito, JJ., dissenting) (emphasis omitted) (quoting Barnes v. Gorman, 536 U.S. 181, 186 (2002)).

Id . at 2603, 2606 (opinion of Roberts, C.J.).

Id. at 2606.

Id. at 2640 (Ginsburg, J., dissenting).

Sossamon v. Lone Star State of Tex., 560 F.3d 316, 328 (5th Cir. 2009) (emphasis added), aff’d sub nom. Sossamon v. Texas, 131 S. Ct. 1651 (2011); Smith v. Allen , 502 F.3d 1255, 1274 (11th Cir. 2007).

Judiciary Act of 1789, ch. 20, § 34, 1 Stat. 92 (codified as amended at 28 U.S.C. § 1652 (2012)).

See Gluck, Intersystemic Statutory Interpretation , supra note 15, at 1924-50; see also Josh Bendor & Miles Farmer, Note, Curing the Blind Spot in Administrative Law: A Federal Common Law Framework for State Agencies Implementing Cooperative Federalism Statutes , 122 Yale L.J. 1280, 1295-306 (2013).

See generally Gluck, Intersystemic Statutory Interpretation , supra note 15.

See Tafflin v. Levitt, 493 U.S. 455, 458-60 (1990) For areas of exclusive federal jurisdiction, see, for example, 18 U.S.C. § 3231 (2012), which discusses federal criminal prosecutions, and 28 U.S.C. §§ 1333, 1334, 1338 (2012), which discuss admiralty, bankruptcy, and intellectual property, respectively.

See Goldberg-Ambrose, supra note 58, at 574-75 .

This, too, is a federalism that Congress could take away, by taking more cases out of the hands of state courts.

See, e.g ., NFIB v. Sebelius, 132 S. Ct. 2566, 2602-03 (opinion of Roberts, C.J.); id. at 2660 (Scalia, Kennedy, Thomas & Alito, JJ., dissenting).

Gluck, supra note 3, at 564-74.

See David Epstein & Sharyn O’Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy-Making Under Separate Powers 154-55, 157 (1999) (documenting an increase in delegations toward the states in times of divided government); Cf . Alison L. LaCroix, The Shadow Powers of Article I , 123 Yale L.J. 2044, 2089 (2014) (arguing that federalism was viewed in the early years of the nation as a strategy for creating a union).

Nationalism is mentioned only in cases about the expansion of federal court jurisdiction after the Civil Rights Cases , 109 U.S. 3 (1883), or in the context of free speech (protecting views about nationalism) and in a few cases about pacifists and asylum.

Nationalism tends to be mentioned in law reviews only in the context of international law or as a justification for legislation under the Commerce Clause. See Jack M. Balkin, Commerce , 109 Mich. L. Rev . 1, 12 (2010); Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8 , 63 Stan. L. Rev. 115, 150, 164-65 (2010).

Mishkin, supra note 6, at 811-14.

Id. at 825-26.

Goldberg-Ambrose, supra note 58, at 566-74.

Cf. Bulman-Pozen, supra note 10, at 1946 (discussing states as staging grounds for partisan debates).

See Nugent , supra note 61; Resnik et al., supra note 57, at 776-80.

See William N. Eskridge, Jr. & John Ferejohn, A Republic of Statutes: The New American Constitution 228-33, 240-43 (2010).

See id. at 209-253; c f. Cristina M. Rodríguez, Negotiating Conflict Through Federalism: Institutional and Popular Perspectives , 123 Yale L.J. 2094, 2100 (2014) (“[N]ational debates can happen trans-locally with or without the federal government in the lead.”).

See, e.g ., An Act Concerning Genetically-Engineered Food §3(a), 2013 Conn. Acts ch. 183; An Act to Protect Maine Food Consumers’ Right to Know About Genetically Engineered Food § 2(1), 2014 Me. Laws ch. 436.

See Local 174, Teamsters v. Lucas Flour Co. , 369 U.S. 95 (1962).

See Heather K. Gerken, The Loyal Opposition , 123 Yale L.J. 1958 (2014); Heather K. Gerken & Ari Holtzblatt, The Political Safeguards of Horizontal Federalism , 112 Mich. L. Rev. (forthcoming 2014) (manuscript at 39); cf. Rodríguez, supra note 115 (emphasizing the importance of finality and national integration).

See infra notes 126-130 and accompanying text.

For just a few examples, see William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo . L.J. 1083, 1090 (2008); Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation , 57 Admin. L. Rev . 501 (2005); Thomas W. Merrill, Judicial Deference to Executive Precedent , 101 Yale L.J . 969 (1992); Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Examination of Chevron, 73 U. C hi. L. Rev. 823, 835-36 & tbls.2-3 (2006); and Peter L. Strauss, When the Judge Is Not the Primary Official with Responsibility to Read: Agency Interpretation and the Problem of Legislative History , 66 Chi.-Kent L. Rev . 321, 346-51 (1990).

City of Arlington v. FCC, 133 S. Ct. 1863, 1883-84 (2013) (Roberts, C.J., dissenting); Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law , 2006 Sup. Ct. Rev. 201.

A relatively recent case, Wyeth v. Levine , 555 U.S. 555, 556 (2009), hinted that deference would not be granted. However, in City of Arlington , 133 S. Ct. at 1874-75 , the Court gave Chevron deference to a question concerning the agency’s own jurisdiction, a question that sometimes overlaps with the preemption question.

For example, even though a state has rights to bring suit under the Administrative Procedure Act, those rights attach only to challenges to formal action, not to what are often more important interactions that occur before the agency takes formal action.

533 U.S. 218 (2001).

Id . at 236-37.

Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1311(f), 124 Stat. 119, 179 (2010) (to be codified at 42 U.S.C. § 18031(f)), amended by Health Care and Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029; id. pt. 3, 124 Stat. at 186; id. § 1321, 124 Stat. at 186 (to be codified at 42 U.S.C. § 18041); id. pt. 4, 124 Stat. at 199; id. § 1331, 124 Stat. at 199 (to be codified at 42 U.S.C. § 18051); id. § 1412(e), 124 Stat. at 223 (to be codified at 42 U.S.C. § 18082(e)).

David J. Barron & Todd D. Rakoff, In Defense of Big Waiver , 113 Colum. L. Rev. 265, 337 (2013) (stating Congress thus “include[d] federalism-based experimentation as an additional purpose”).

See Ryan, supra note 13, at 33-34; Philip J. Weiser, Chevron , Cooperative Federalism, and Telecommunications Reform , 52 Vand. L. Rev . 1, 12-13 (1999) .

Gluck & Bressman, supra note 16, at 1011 (reporting that half of congressional drafters surveyed said they at least sometimes intend for state implementers to implement federal statutory ambiguities).

See Gluck, supra note 3, at 610-12 (cataloguing cases).

See, e.g. , Perry v. Dowling, 95 F.3d 231, 237 (2d Cir. 1996); Weiser, supra note 128, at 12-13.

Orthopaedic Hosp. v. Belshe, 103 F.3d 1491, 1495-96 (9th Cir. 1997) (quoting Turner v. Perales, 869 F.2d 140, 141 (2d Cir. 1989)) (brackets omitted).

Bell Atl.-Del., Inc. v. McMahon , 80 F. Supp. 2d 218, 227 (D. Del. 2000).

City of Arlington v. FCC, 133 S. Ct. 1863, 1883-84 (2013) (Roberts, C.J., dissenting).

See Gluck & Bressman, supra note 16, at 1006-10 (reporting that only one percent of congressional drafters surveyed said that multiple delegations signal that no deference is intended, twenty-five percent said both delegates are intended to receive deference, and almost half of respondents said the answer varies between deference to single or multiple implementers depending on how the statute is structured).

See generally Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space , 125 Harv. L. Rev. 1131 (2012) ( discussing only multiple federal agencies ) ; Gersen, supra note 121 (same).

See Catherine M. Sharkey, Inside Agency Preemption , 110 Mich. L. Rev. 521, 582 (2012) (noting the FDA’s failure to consult with state officials even though so directed by the “Federalism” Executive Order, Exec. Order No. 13,132, 64 Fed. Reg. 43,255 (Aug. 10, 1999)); Young, supra note 5, at 1365.

133 S. Ct. at 1873.

See id. at 1866; supra notes 74-76 and accompanying text.

See, e.g. , Nicholas Bagley & Helen Levy, Essential Health Benefits and the Affordable Care Act: Law and Process , 39 J. Health Pol., Pol’y & L. 444, 455 (forthcoming Apr. 2014) (manuscript on file with author) (arguing that HHS’s decision to delegate to the states the definition of “essential health benefits” in the health reform statute is likely not what Congress intended). For a different twist on these issues, see U.S. Telecomm. Ass’n v. FCC, 359 F.3d 554, 565-66 (D.C. Cir. 2004) (holding the FCC could not sub-delegate its authority to state implementers).

For elaboration of this tension, see Peter J. Smith, Pennhurst , Chevron , and the Spending Power , 110 Yale L.J. 1187 (2001) ; see also David Freeman Engstrom, Drawing Lines Between Chevron and Pennhurst : A Functional Analysis of the Spending Power, Federalism, and the Administrative State , 82 Tex. L. Rev. 1197 (2004) (analyzing the same conflict but in the constitutional context of the spending power).

See Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub L. No. 111-203, § 1044(a), 124 Stat. 1376, 2015-16 (2010) (to be codified at 12 U.S.C. § 5551); Sharkey, supra note 138, at 581 (describing this as a “ Skidmore standard”).

See Bagley & Levy, supra note 141, at 450; Sarah Dash et al., Implementing the Affordable Care Act: State Decisions about Health Insurance Exchange Establishment , Center on Health Ins. Reforms: Geo. U. Health Pol’y Inst. 7 (Apr. 2013), http://chir.georgetown.edu/pdfs /CMWF%20ISSUE%20BRIEF_State%20Exchange %20Implementation_Georgetown %20FINAL.pdf.

See Bagley & Levy, supra note 141, at 455.

See Samuel Bagenstos, Federalism by Waiver After the Health Care Case , in The Health Care Case 227 (Nathaniel Persily et al. eds., 2013); Barron & Rakoff, supra note 127, at 337; Bulman-Pozen, supra note 10; Gluck, supra note 3, at 562; Theodore Ruger, Health Policy Devolution and the Institutional Hydraulics of the Affordable Care Act , in The Health Care Case, supra , at 359 .

See Erin Ryan, Federalism and the Tug of War Within (2011); Ryan, supra note 13.

545 U.S. 967, 982-83 (2005).

Legislative Digest: H.R. 2018 , GOP.gov , http://www.gop.gov/bill/112/1/hr2018 (last visited Jan. 20, 2014); s ee Clean Water Cooperative Federalism Act of 2011, H.R. 2018, 112th Cong. (as passed by House, July 13, 2011); see also Clean Water Cooperative Federalism Act of 2013, H.R. 1948, 113th Cong. (as introduced in House); Clean Water Cooperative Federalism Act of 2011, S. 3558, 112th Cong. (as introduced in Senate).

See, e.g ., Va. Dep’t of Educ. v. Riley, 106 F.3d 559, 561-72 (4th Cir. 1997) (en banc) (holding that federal agencies could not so constrain this type of state “autonomy” to implement federal law), superseded by statute , Individuals with Disabilities Education Act Amendments of 1997, Pub. L. No. 105-17, § 612, 111 Stat. 37, 60-72 (codified as amended at 20 U.S.C. § 1412 (2012)); Engstrom, supra note 142, at 1216 (discussing cases).

See Charlton C. Copeland, Beyond Separation in Federalism Enforcement: Medicaid Expansion, Coercion, and the Norm of Engagement , 15 U. Pa. J. Const. L. 91, 153-54 (2012).

Intriguingly, the Court does apply those contract interpretation principles to a different kind of agreement between sovereigns—interstate compacts. Tarrant Reg’l Water Dist. v. Herrmann, 133 S. Ct. 2120, 2130 (2013).

Bagenstos, supra note 60, at 391.

Id. at 386.

Katie Keith & Kevin W. Lucia, Implementing the Affordable Care Act: The State of the States , Commonwealth Fund 14 (2014), http://www.commonwealthfund.org/~ /media/Files/Publications/Fund%20Report/2014/Jan/1727_Keith_implementing_ACA_state_of_states.pdf.

Sarah Dash, Kevin Lucia & Christine Monahan, Implementing the Affordable Care Act: State Decisions about Health Insurance Exchange Establishment , Center on Health Ins. Reform 6-17 (2013), http://chir.georgetown.edu/pdfs/CMWF%20ISSUE%20BRIEF_State %20Exchange%20Implementation_Georgetown%20FINAL.pdf.

Ernest A. Young, Stalking the Yeti: Protective Jurisdiction, Foreign Affairs Removal, and Complete Preemption , 95 Calif. L. Rev . 1775, 1787-88 (2007). Compare Washington v. EPA, 573 F.2d 583, 586 (9th Cir. 1978), with Concerned Citizens of Bridesburg v. Phila. Water Dep’t, 843 F.2d 679, 680 ( 3d Cir . 1988). S ee generally Richard H. Fallon, Jr. et al., Hart and Wechsler’s The Federal Courts and the Federal System 7 72 (6th ed. 2009).

See, e.g. , Arkansas v. Oklahoma, 503 U.S. 91, 110 (1992).

Compare Budget Prepay, Inc. v. AT&T Corp., 605 F.3d 273 (5th Cir. 2010), with Bell Atl. Md., Inc. v. MCI WorldCom, Inc. 240 F.3d 279 (4th Cir. 2001), vacated sub nom. Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635 (2002) (reaching opposite results); Weiser, supra note 128, at 1751 n.317 (cataloging the court split on this question under the Telecommunications Act).

Oberlander v. Perales, 740 F.2d 116, 119 (2d Cir. 1984).

See Lumen N. Mulligan, Jurisdiction by Cross-Reference , 88 Wash. U. L. Rev . 1177, 1179-80 (2011).

545 U.S. 308, 314 (2005) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 821 (1988) (Stevens, J., concurring)).

Id. at 313-14.

Resnik, supra note 41, at 1946-47.

See Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 807 (1986) .

For an early expression of the same concern, see Shoshone Mining Co. v. Rutter , 177 U.S. 505, 507 (1900) . For the Court’s most recent invocation of it, see Gunn v. Minton , 133 S. Ct. 1059, 1068 (2013).

Oberlander v. Perales, 740 F.2d 116, 119 (2d Cir. 1984); accord Concourse Rehabilitation & Nursing Ctr. v. Wing, 150 F.3d 185 (2d Cir. 1998).

See Goldberg-Ambrose, supra note 58.

See Empire Healthchoice Assurance, Inc. v. McVeigh , 547 U.S. 677 (2006).

See Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism , 118 Yale L. J. 1256 (2009).

See, e.g . Jonathan Oberlander & Krista Perreira, Implementing Obamacare in a Red State—Dispatch from North Carolina , 369 New Eng. J. Med. 2469 (2013) (detailing efforts to derail implementation); cf . Goldberg-Ambrose, supra note 58, at 566-74 (setting out factors favoring federal jurisdiction, including “biased state court administration,” and “the promotion of harmony and uniformity in the development of the law of the various states”).

Cf . Fallon et al ., supra note 157, at supp. 96 (questioning the wisdom of the Court’s decision in Gunn v. Minton , 133 S. Ct. 1059 (2013), to deny federal question jurisdiction over the malpractice claims related to a patent claim given that most patent lawyers practice exclusively in federal courts and before the federal Patent and Trademark Office, and instead leaving claims to be “enforced by state courts that generally lack jurisdiction to consider issues of patent law”).

Gluck, Intersystemic Statutory Interpretation , supra note 15, at 1924-60.

Bendor & Farmer, supra note 99 , at 1295-306 (not discussing these questions as Erie questions but, rather, assuming the question to be a matter of federal law and using the framework in United States v. Kimbell Foods , 440 U.S. 715 (1979), to determine when federal courts should take state law as the rule of decision).

A third of states have a “no deference” rule; another third adopt a Chevron analogue for state agency interpretations of state law; and the remaining third employ something in between. See Ann Graham, Chevron Lite: How Much Deference Should Courts Give to State Agency Interpretation? , 68 La. L. Rev . 1105, 1109 (2008).

See Weiser, supra note 128, at 12-13; see also Gluck, supra note 3, at 609-15 (detailing disagreement in the lower courts).

503 U.S. 607, 626 (1992) (rejecting federal-question jurisdiction for “state statutes approved by a federal agency but nevertheless applicable ex proprio vigore ”).

See Va. Office for Prot. & Advocacy v. Stewart , 131 S. Ct. 1632 (2011); supra notes 85-89 and accompanying text.

Jim Rossi, Dual Constitutions and Constitutional Duels: Separation of Powers and State Implementation of Federal Inspired Regulatory Programs and Standards , 46 Wm. & Mary L. Rev. 1343, 1354-63 (2005).

See Comm’r of Labor & Indus. v. Lawrence Hous. Auth., 261 N.E.2d 331 (Mass. 1970); see also, e.g. , State ex rel. Clark v. Johnson, 904 P.2d 11 (N.M. 1995) (holding that the federal Indian Gaming Regulatory Act could not give the state governor authority to form compacts with Indian tribes because state law prohibited it); Roderick M. Hills, Jr., Dissecting the State: The Use of Federal Law to Free State and Local Officials from State Legislatures’ Control , 97 Mich. L. Rev . 1201, 1207-08 (1999) (discussing Clark and other cases); Rossi, supra note 180 (discussing this problem in the environmental context).

United States v. Mead Corp., 533 U.S. 218, 236-37 (2001).

Heather K. Gerken, Our Federalism(s ), 53 Wm. & Mary L. Rev . 1549 (2012); Judith Resnik, Federalism(s)’ Forms and Norms: Contesting Rights, De-Essentializing Jurisdictional Divides, and Temporizing Accommodations , in Federalism and Subsidiarity: Nomos LV (James Fleming ed., forthcoming 2014); see also Rodríguez , supra note 115 (also emphasizing the diversity of federalism’s forms).

William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking , 45 Vand. L. Rev. 593, 636 (1992).

Ernest A. Young, State Sovereign Immunity and the Future of Federalism , 1999 Sup. Ct. Rev. 1, 3; see also Wechsler, supra note 8, at 559-60.

Calvin R. Massey, Etiquette Tips: Some Implications of “Process Federalism , ” 18 Harv. J.L. & Pub. Pol’y 175, 192-93 (1994) (discussing clear statement rules); Garrick B. Pursley, Dormancy , 100 Geo. L.J. 497, 563 (2012) (detailing the position that federalism canons are “justified as doctrinal reinforcement for ‘process federalism’ safeguards—that is, states’ opportunities to protect their interests in the national lawmaking process”).

Gluck & Bressman, supra note 16, at 945-46.

Arizona v. Inter Tribal Council of Ariz., 133 S. Ct. 2247, 2256-27 (2013); Preston v. Ferrer, 552 U.S. 346, 353 (2008).

See Gluck, supra note 18, at 763-64; Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation and the Canons: Part II , 66 Stan. L. Rev. (forthcoming 2014) (manuscript at 68), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2358074 ; Abbe R. Gluck, Interpretive Tailoring (Feb. 2011) (Columbia Law Sch., Discussion Draft) (on file with author).

Gluck, supra note 189 (introducing this point); see also Gluck & Bressman, supra note 189, at 70-71 (elaborating on same).

For elaboration, see generally Gluck, Intersystemic Statutory Interpretation , supra note 15.

See generally Gluck, supra note 18 (arguing that most of the canons should be understood as federal common law).

See Monaghan, supra note 17.

Wyeth v. Levine, 555 U.S. 555, 583 (2009) (Thomas, J., concurring in the judgment); Daniel J. Meltzer, Preemption and Textualism , 112 Mich. L. Rev . 1, 4-8 (2013); Caleb Nelson, Preemption , 86 Va. L. Rev . 225, 277 (2000).

See Gillian E. Metzger, Administrative Law as the New Federalism , 57 Duke L .J. 2023, 2052 (2008).

Frankfurter, Abstention Doctrine, and the Development of Modern Federalism: A History and Three Futures

For helpful conversations and thoughtful feedback that made this Article better, I am grateful to Patrick Barry, William Baude, Lisa Bernstein, Samuel Bray, Zachary Clopton, Michael Collins, Richard Epstein, Patrick Fuster, Daniel Hemel, Zac Henderson, Aziz Huq, Daniel Kelly, Adam Mortara, Michael Solimine, Manuel Valle, Laura Weinrib, Hon. Diane Wood, Ilan Wurman, and participants in workshops and conferences at the University of Chicago, Loyola University Chicago, and the American Association of Law Schools. Thanks also to the editors of The University of Chicago Law Review for their hard work and helpful input.

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In its first century and a half, the Supreme Court never used the term “federalism” in its opinions. The Court had talked about federal-state relations before, but the concept had gone unlabeled. That changed in 1939. Something new was happening, thanks in large part to Justice Felix Frankfurter. Just a month after joining the Court, Frankfurter authored the Court’s first opinion using the term “federalism.” Frankfurter introduced federalism as a key concept for analyzing the relationship between state courts and federal courts. Before long, Frankfurter would rely on federalism to fashion an original and enduring doctrine of judicial federalism: abstention, which requires federal courts to sometimes refrain from hearing cases that are within their jurisdiction.

This Article provides a historical study of Frankfurter’s contribution to the modern law of judicial federalism. It documents Frankfurter’s theory of federalism in his judicial opinions with a focus on the abstention cases. It also shows how the abstention cases and their concept of federalism were rooted in Frankfurter’s Progressive politics. They were a reaction to what he perceived as the federal courts’ anti-regulatory and anti-labor attitudes.

The history—relevant today as the political discussion around the courts again echoes the Progressive Era—sets the stage for considering the future of abstention. I suggest three possibilities. The first, an originalist future, would more or less maintain the contemporary Supreme Court’s status quo on abstention, somewhat more modest than what Frankfurter envisioned: a cautious use of abstention in a relatively small number of equitable cases. A second possibility would be a liberal future that backtracks from abstention, as legal liberals recognize a cautionary lesson in Frankfurter’s hostility to an assertive, rights-protecting judiciary. The third future would be one embracing Frankfurter’s vision of abstention in the name of judicial restraint. Abstention has the potential to curb federal court power and, at least on the margins, put more adjudicative power in state courts. This possibility might bring together modern progressives, who are wary about a largely conservative federal judiciary, with conservatives who want to promote judicial restraint and an increase in democratic accountability.

Introduction

The Supreme Court did not use the term “federalism” in any opinions in its first 150 years. 1 The Court had (of course) previously talked about federal-state relations, but it did so without the term “federalism”—it preferred a different vocabulary, discussing the police powers of the states and the enumerated powers of the federal government. 2 The concept of federalism went unlabeled. 3 It was not until 1939 that the term “federalism” came into regular use on the Supreme Court. Federalism arrived at the Court as a free-floating principle of constitutional theory, not explicitly tethered to any particular textual basis in the Constitution. For the ambitious justice who introduced the term, it would provide the basis for a subtle but significant rollback of federal court authority. That ambitious justice was Felix Frankfurter. His innovation fundamentally shaped the relationship between federal and state courts. Particularly through his invention of the federal court abstention doctrine, Justice Frankfurter made federalism a central consideration in assessing whether a particular case should be in state court instead of federal court. 4 How and why Frankfurter brought federalism to the Supreme Court’s case law is an untold chapter in federalism’s legal, political, and intellectual history. It is situated squarely in the Progressive Era debates about the role of the federal courts in the American constitutional system. It is a history that can also help us to see more clearly the challenges and possibilities for abstention’s future.

Frankfurter invoked federalism to justify creating the first abstention doctrine in Railroad Commission of Texas v Pullman Co .  5 In that case, the Court held that federal courts must decline to decide cases that depend on an unsettled issue of state law, the resolution of which might remove the necessity of deciding a constitutional issue. 6 Since Frankfurter introduced “ Pullman abstention,” abstention doctrines have multiplied. Federal courts apply several related abstention doctrines to refuse to hear certain cases that can be heard by state courts. 7 The federal abstention doctrines have been controversial. A number of scholars have questioned whether it is appropriate for federal courts to refuse to decide a case that is clearly within their jurisdiction. 8 In response, a leading defense of abstention argues that abstention doctrines are based on longstanding traditions of the judiciary’s discretionary control of its docket. 9

Federalism, though, was not among the reasons offered to justify judicial discretion to decline hearing cases prior to Frankfurter’s confirmation to the Supreme Court. By offering a history of Frankfurter’s interest in federalism-based abstention, this Article highlights the historical contingency of the doctrine. That doesn’t discredit the doctrine—just about every conceivable legal rule has some element of historical contingency in the circumstances of its creation. But it does show that the federalism justification for abstention doesn’t have the historical pedigree some have used to defend abstention.

This historical point has doctrinal implications for abstention’s scope. The more federalism is treated as a freestanding legal value that might justify abstention, 10 the more likely it is that abstention should apply across the board—to cases at law and equity—when states have strong interests in deciding a given case. 11 But if federalism is just to be folded into the equity calculus as another factor when a court already has some measure of discretion, then the current Supreme Court’s tendency to limit abstention strictly to actions seeking “equitable or discretionary relief” makes sense. 12 Still, commentators have noted that, despite strong language in some of its opinions, the Supreme Court has not yet directly held that abstention could never be used in actions at law. 13 For his part, Frankfurter preferred the broader version of abstention. Contra the Supreme Court’s emphasis in more recent years, Frankfurter denied that abstention was merely a product of equity and claimed it had an independent basis in federalism. 14

Judicial federalism—the management of the relationship between federal and state courts—is not usually at the top of anyone’s list of politically charged legal issues. Abstention certainly is not. But Frankfurter’s innovations in this field were a means to his very political goal: reducing the power of the federal courts. Federalism was the malleable, ostensibly neutral concept that provided Frankfurter with a rationale to pursue this long-term goal.

Federalism’s political flexibility and unpredictability is a key theme that emerges from the history. At various times in American history, federalism has taken on partisan political valences. When the Rehnquist Court cut back on federal power, 15 observers described it as a conservative “federalism revolution”—tied to both the conservative politics and the historically based originalist legal theories of that Court’s majority. 16 But recent scholarship has reminded us that federalism has no single political orientation. 17 Federalism may have served conservative ends in some historical episodes, but it served progressive ends in others. 18 Contemporary proponents of progressive federalism 19 argue that federalism should once again be used to further progressive causes. 20 To illustrate, today, liberal Democratic state attorneys general are putting progressive federalism into action as they litigate against conservative policies promulgated by a Republican administration in the national government. 21 The history recounted in this Article provides a historical illustration of the progressive federalism of the Progressive Era itself, showing that Frankfurter used federalism to try to hold back the conservative federal courts. Federalism itself was not viewed as partisan, political language—and that, it seems, is part of the appeal of using the vocabulary of federalism to pursue political objectives.

The history recounted in this Article demonstrates that progressive federalism has deep roots. It also directs the focus to an issue that has mostly been left out of recent progressive federalism scholarship. In that literature, there has been plenty of discussion of the relationship between federal and state legislative, executive, and regulatory powers. This Article instead emphasizes judicial federalism—that is, the relationship between federal and state courts. A close look at the politics of judicial federalism is timely. Since the summer of 2018 and the contentious arguments following the retirement of Justice Anthony Kennedy, there have been renewed calls by a new generation of liberals and progressives to restrain the federal courts. 22 The national political conversation around the courts today once again echoes the concerns raised in the Progressive Era. Abstention deserves to be part of the discussion—not only as an option, but as a reminder that the Progressive opposition to the courts had (and likely will have again) consequences that might be discomfiting to today’s progressives and liberals. 23 The story of Frankfurter’s abstention can, among other things, remind modern observers that principles like federalism can have an element of unpredictability even when wielded strategically for political gains. Progressive politicians discussed something very much like abstention as early as the 1910s, and Frankfurter took note. But by the time Frankfurter made it part of the Supreme Court’s jurisprudence, the labor issues that had originally motivated its introduction were (essentially) gone and the doctrine’s first application thwarted civil rights litigation instead.

After considering the history of Frankfurter’s federalism as well as its role in introducing the vocabulary of federalism and creating abstention doctrines, this Article presents three possible futures for federalism-based abstention doctrine. One possible future is to maintain the Supreme Court’s current status quo, which emphasizes the division between actions at law and equitable actions. The current state of affairs is more informed by originalist (or at least historical) considerations than was Frankfurter’s most expansive vision of abstention: if one believes that legitimate constitutional interpretation requires ascertaining the meaning of the Constitution at the time of its adoption, Frankfurter’s originality in crafting abstention doctrine is a liability. The discretionary traditions of equity may provide a historical basis for abstention, but federalism does not. The upshot of this analysis is to support the Supreme Court’s tendency in the Rehnquist and Roberts eras to apply abstention in equitable actions but not in actions at law. 24

A second future would involve a drastic cutback of abstention doctrine. This might be thought of as a “legal liberal” future. Abstention, as Frankfurter designed it, is in tension with the liberal minority-rights-protecting vision for the courts. Abstention was designed by a Progressive in order to allow federal courts to avoid deciding issues of federal law, which should be troubling to legal liberals who look to federal courts to preserve minority rights.

A third future would embrace the fullness of Frankfurter’s vision for abstention. For either a modern progressive or for a “judicial restraint” conservative interested in reducing the power of the federal courts, Frankfurter’s vision might be inspiring. At least on the margins, abstention promises to curb federal court power and put more adjudicative power in state courts.

This Article is structured as follows. Part I describes Frankfurter’s introduction of federalism on the Court. Part II describes the Progressive Era conflicts surrounding the federal courts that formed the backdrop for Frankfurter’s thinking. Part III explores Frankfurter’s analysis of federalism and the role of the federal courts in light of his Progressive commitments. It documents how abstention specifically emerged from the Progressive Era efforts to limit federal court power and instead to empower state courts. Part IV uses this history to consider the three possible futures mentioned above for abstention.

I. Felix Frankfurter and the Invention of Federalism

Prior to 1939, the Supreme Court never used the term “federalism.” The Court had dealt with classic issues of federal power throughout its history—such as the supremacy of federal law over state law 25 and the scope of various enumerated powers in the federal constitution. 26 But “federalism” was a term used by scholars, not judges. Scholars were the ones who had the occasion to describe, at a high level of generality, the concept of a government involving multiple locations of authority. This could describe the national and state governments in the American system, 27 or similar arrangements in any number of other countries. 28 Sometimes the term was also used to refer to a political attitude, in which case it could refer generally to an attitude of centralizing, 29 and sometimes to the Federalist political party at the nation’s founding. 30

The term had rarely been used in any judicial opinions prior to Justice Frankfurter’s use of the term on the Supreme Court in 1939. Database searches of all state and federal cases for “federalism” reveal only twelve references in any reported cases decided before 1939.  31 The references to the term were often trivial. One of these uses was in the US Reports in an oral argument. 32 Two more were in oral argument in state courts. 33 Two were in early nineteenth-century libel cases in which allegedly defamatory newspaper publications mentioned “federalism” in discussions of state politics. 34 Two were citations to historical works that used the term in their titles—one was about the United States and one about Australia. 35 One was a reference to a French legal theorist as a “leading French writer on Federalism.” 36 One was a reference to England, not the United States.  37 Only in three cases did the term appear in an opinion with anything like a substantive reference to the American federal-state relationship.  38 With this as the background in jurisprudence, it is all the more striking how suddenly and dramatically Frankfurter introduced the term into the Supreme Court’s jurisprudence.

Federalism appeared repeatedly in Frankfurter’s judicial opinions in a variety of settings. It appeared in Supreme Court opinions almost immediately after Frankfurter joined the Court in 1939 as he began to articulate some of his views on federalism in a diverse range of cases.  39 This Part will introduce Frankfurter’s initial statements of his views in his 1939 opinions, before turning to focus on two areas of particular importance to him: the power to issue injunctions and abstention doctrine.

A.   1939: Frankfurter and Federalism Join the Court

Frankfurter made four references to federalism in his judicial opinions in his first year on the Court. Giving a concept a name is a significant development. The label may not change the concept, 40 but a change in labeling is a clue to the historian that something new is going on. 41

The first time the word “federalism” appeared in a Supreme Court opinion was Frankfurter’s opinion in Hale v Bimco Trading, Inc .  42 The opinion was released on February 27, 1939, barely a month after Frankfurter had joined the Court. 43 The case concerned a Florida statute that required the State Road Department to inspect imported cement and collect an inspection fee. In a Florida state court proceeding, a petitioner sought a writ of mandamus to compel Hale, a member of Florida’s State Road Department, to enforce the statute. 44 The Supreme Court of Florida issued the writ of mandamus. Meanwhile, Bimco Trading filed suit in federal district court, arguing that the Florida statute was unconstitutional and seeking an injunction against enforcement of the statute. 45 The federal court issued the injunction and the Florida Supreme Court stayed the mandamus pending Supreme Court review. The first issue centered on the Anti-Injunction Act. 46 Frankfurter said it was inapplicable in the present case, precisely because the federal court never in fact enjoined the state court. Frankfurter concluded his discussion of the Anti-Injunction Act with a brief comment on its function: “That provision is an historical mechanism . . . for achieving harmony in one phase of our complicated federalism by avoiding needless friction between two systems of courts having potential jurisdiction over the same subject-matter.”  47 That was all; Frankfurter then went on to address the merits of the statute’s validity. But that reference to “our . . . federalism” would be back.

A few weeks later, Frankfurter again used the phrase “our federalism” to describe the jurisdiction of the Court over controversies between two states. 48 The phrase appeared again in a tax case 49 in which the Supreme Court refused to find immunity from state tax for a federal employee. 50 Frankfurter concurred, arguing that it was essential not to expand intergovernmental immunities from taxation in such a manner as to undercut the authority of either state or federal government. “[T]he fact that we are a federalism [sic],” Frankfurter wrote, “raises problems regarding these vital powers of taxation. Since two governments have authority within the same territory, neither through its power to tax can be allowed to cripple the operations of the other.” 51 In previous cases, Frankfurter suggested, the Court had been insufficiently sensitive to this concern: “A succession of decisions thereby withdrew from the taxing power of the States and Nation a very considerable range of wealth without regard to the actual workings of our federalism, and this, too, when the financial needs of all governments began steadily to mount.” 52 In the intervening years, “two other great English federalisms,” Australia and Canada, considered and rejected intergovernmental tax immunity. 53 Frankfurter’s phrasing sounds odd to modern ears, unaccustomed to hearing the American state referred to as “a federalism.” This in itself is a striking reminder that federalism was not a widely used term at the time, and its usage was less fixed than it would be by the end of the twentieth century. (Frankfurter may have made federalism a common term in modern constitutional law, but he did not succeed in popularizing all of his own usages.)

In the fall of 1939, Frankfurter was again talking about federalism. The case was Palmer v Massachusetts , 54 and it foreshadowed Frankfurter’s later opinions on abstention. In Palmer , a railroad had filed for reorganization under the federal bankruptcy laws. The railroad’s bankruptcy trustees had applied to the Massachusetts Department of Public Utilities for permission to abandon eighty-eight passenger stations. 55 The Department conducted a series of hearings on the issue. While the proceedings were still ongoing, Palmer, a creditor of the railroad, argued in the bankruptcy proceedings for an order directing the Trustees to abandon the stations. Massachusetts argued that the district court lacked jurisdiction, but the district judge disagreed and issued a decision on the merits, granting “the very relief for which the Trustees had applied to the Department and which was still in process of orderly consideration.” 56 The Court granted certiorari because, in the words of Frankfurter’s majority opinion, the case raised “important questions” about the application of the railroad bankruptcy law, “particularly where it intersects the regulatory systems of the states.” 57 As Frankfurter formulated the issue, “[t]he District Court assumed power to supplant the relevant authority of the state—an authority which . . . has not been conferred by Congress either upon the federal courts or the Interstate Commerce Commission.” 58 He made it clear from the outset that “our federalism” was central to the case. “[W]ariness,” he said, is necessary when “the problem of construction implicates one of the recurring phases of our federalism and involves striking a balance between national and state authority in one of the most sensitive areas of government.” 59

Frankfurter argued that the Court should be wary about finding congressional interference with state regulation. Congress had chosen to regulate “purely intrastate activities of an interstate carrier” when necessary to effectuate interstate regulation. 60 But this was the exception rather than the rule, and federalism was the reason why: “[S]uch absorption of state authority is a delicate exercise of legislative policy in achieving a wise accommodation between the needs of central control and the lively maintenance of local institutions.” 61 The opinion then considered and rejected the claim that the bankruptcy code provided the district court with equal authority in the context of bankrupted railroads as in other contexts. 62

Thus, from the very start of Frankfurter’s career on the Supreme Court, he established federalism as an important analytical consideration in a number of doctrinal areas. He also made several points about federalism clear in his opinions. First, federalism was a shared American value (“our federalism,” in Hale and Palmer ). Second, federalism required a careful “balance between national and state authority.” 63 Finally, federalism valued independent state action, whether of state courts ( Hale ), state taxing entities ( Graves v New York 64 ), or state regulators ( Palmer ). Whereas the Framers used the term “federalism” to refer to a robust national government, 65 Frankfurter’s conception of federalism emphasized the continued vitality of the states. In other words, for an eighteenth-century American, the novel point in federalism was the active role of the national government. Federalism continued to have connotations of centralization at the expense of the states into the twentieth century. 66 By contrast, for Frankfurter, federalism was to be invoked to preserve and protect the states from being supplanted by national action.

B. Limiting Injunctions

Frankfurter’s first major innovation in the field of judicial federalism was to limit the power of federal courts to enjoin state courts. The Anti-Injunction Act had long limited the federal courts’ power in this area, prohibiting the issuance of injunctions by a federal court against proceedings in a state court. 67 But there had always been a few exceptions to the scope of coverage of the Anti-Injunction Act, some built into the Act itself and others recognized by the courts. In Toucey v New York Life Insurance Co , 68 the Court heard a case about the limits of the so-called “relitigation exception” to the anti-injunction rule. The case turned on whether federal courts could enjoin state court litigation of matters that had previously been decided by a federal judgment. 69 Writing for the Court, Frankfurter said that the relitigation exception did not exist, again grounding the rationale in federalism.

The Anti-Injunction Act, according to Frankfurter, “is not an isolated instance of withholding from the federal courts equity powers possessed by Anglo-American courts.” 70 Instead, he said, it is part of the “delicate adjustments required by our federalism,” pursuant to which “Congress has rigorously controlled the ‘inferior courts’ in their relation to the courts of the states.” 71 Frankfurter embarked on a detailed examination of the legislative history of the 1793 act in which the Anti-Injunction Act originated. 72 Frankfurter admitted that the purpose of the Act was really not federalism per se: “Much more probable is the suggestion that the provision reflected the prevailing prejudices against equity jurisdiction.” 73 That didn’t stop him from viewing it as a component of federalism. 74

Frankfurter managed to get six votes on the Court for his opinion reducing the scope of the exceptions for the Anti-Injunction Act, all in the name of “our federalism.” But Justice Stanley Reed, in a dissent joined by Chief Justice Harlan Stone and Justice Owen Roberts, complained that Frankfurter had disregarded or discarded decades of precedent: “We think it may be accurately stated that for more than half a century there has been a widely accepted rule supporting the power of federal courts to prevent relitigation. There are adequate precedents directly in point and others which recognize that the rule exists and is sound.” 75

The decision in Toucey surprised commentators, who viewed it as upsetting substantial law that (they had thought) was settled. 76 Congress too was surprised, and a few years later, in 1948, explicitly rejected Toucey ’s result, adding the words “to protect or effectuate its judgments” to the exceptions to the Act. 77 As the reviser’s note explained, “[T]he revised section restores the basic law as generally understood . . . prior to the Toucy [sic] decision.” 78 And that is where matters stand today: “[F]ederal courts can enforce the doctrines of claim and issue preclusion by enjoining proceedings in state court that would run afoul of those doctrines.” 79 Frankfurter thus failed to significantly cut back the law of injunctions through judicial interpretation, but it was not for lack of trying.

C. Abstention Doctrine

Much more durable was Frankfurter’s opinion in Pullman . Pullman established the principle that federal courts should abstain from deciding a constitutional issue when the case involved an unsettled issue of state law, the resolution of which could remove the necessity of deciding the constitutional issue. The case involved a requirement by the Texas Railroad Commission that all railroads with Pullman (sleeper) cars employ a white conductor. There was a statutory argument that the Commission lacked authority to make this requirement and a constitutional argument that the regulation violated the Equal Protection Clause. 80

Frankfurter thought it inappropriate for the federal court to decide a constitutional issue when construction of a state statute could resolve the issue in such a manner so as to avoid the constitutional question. And the meaning of the state statute was a matter for the state courts, not the federal courts: “The last word on the meaning of Article 6445 of the Texas Civil Statutes, and therefore the last word on the statutory authority of the Railroad Commission in this case, belongs neither to us nor to the district court but to the [S]upreme [C]ourt of Texas.” 81

Frankfurter recognized that he was dealing with judicial equity powers, but he integrated federalism into the equity calculus: “Few public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies.” 82 Frankfurter synthesized a long line of prior cases about equity power into this federalism rubric. “These cases reflect a doctrine of abstention appropriate to our federal system whereby the federal courts, ‘exercising a wise discretion,’ restrain their authority because of ‘scrupulous regard for the rightful independence of the state governments’ and for the smooth working of the federal judiciary.” 83 Accordingly, the rule in the Pullman case was presented as the employment of the federal courts’ equitable powers “in furthering the harmonious relation between state and federal authority without the need of rigorous congressional restriction of those powers.” 84

Frankfurter would later double down on the federalism rationale. In Louisiana Power & Light Co v City of Thibodaux , 85 he recognized that Pullman and subsequent abstention cases had been equity cases. But he insisted that the abstention principle was not merely “a technical rule of equity procedure.” 86 The abstention cases, he said, “reflect a deeper policy derived from our federalism.” 87 Accordingly, he was willing to apply the abstention principle to an eminent domain proceeding that he recognized was not a traditional equitable proceeding . 88 The City of Thibodaux had initiated expropriation proceedings against an out-of-state corporation’s property and the corporation had removed the case to federal court. 89 It was appropriate, Frankfurter wrote for the majority, for the federal court to stay proceedings to allow the state supreme court to construe the relevant expropriation statute. 90 Eminent domain was a “sovereign prerogative,” Frankfurter noted, and it was accordingly respectful of the sovereignty of the states in the federal system to allow them to construe their statutes first. 91

Pullman abstention remains good law to this day. After its introduction, other abstention doctrines have also multiplied and “our federalism” became a central organizing principle of the Supreme Court’s jurisprudence on federal jurisdiction, particularly as it came into contact with state court proceedings. 92 Perhaps most famously, Justice Hugo Black invoked “our federalism” in Younger v Harris , 93 which established the principle that federal courts should abstain from enjoining an ongoing state criminal proceeding. 94

II. The Politics of Courts in the Progressive Era

Justice Frankfurter’s thoughts about federalism developed before he came to the Court. As a young lawyer coming of age in the Progressive Era, he began his career by engaging in a debate over the place of the courts in the American system of government that would shape the rest of his career. But the link between Frankfurter’s early politics and scholarship, on the one hand, and his theory of federalism, on the other, has received little notice in the substantial scholarly literature. The only major work to date that has seriously studied Frankfurter’s views on federalism—an insightful article by Professor Mary Brigid McManamon—emphasized Frankfurter’s interest in reducing a crowded docket on the Supreme Court. 95 This was certainly a relevant, and important, consideration, which this Article will also describe briefly in this Part. But it wasn’t the only consideration that Frankfurter had in mind when he thought about the federal courts. The historical evidence suggests that his involvement with the politically charged fights over federal courts in the 1910s and 1920s were, if anything, even more important in shaping Frankfurter’s worldview. 96 This point is surprisingly almost entirely absent from the otherwise enormous literatures on Frankfurter, on federalism, and on the federal courts. 97 The point is a crucial one for understanding Frankfurter’s jurisprudence generally, and his thinking about federalism and his invention of abstention in particular. This Part introduces the Progressive politics surrounding the courts that informed Frankfurter’s thinking.

A. The Political Fight over the Federal Courts in the Progressive Era

Frankfurter entered the legal profession in the Progressive Era, when the legitimacy of the federal courts was hotly contested. The judicial history of the first few decades of the twentieth century has become known as the “ Lochner era.” The idea that the courts were generally conservative and hostile to state regulation was something of a Progressive morality tale. Recent scholarship has shown that federal courts were not as hard-headed in opposing Progressive regulation as the Progressives made them out to be (and correspondingly, that Progressive reform legislation was not as benign as it was often presented to be). 98 That said, the concern that the judiciary was a threat to Progressivism generally was widespread.

The “ Lochner era” label encompassed several doctrinal trends. The first was a demanding constitutional scrutiny of state regulatory law. This was the principle embodied in the Lochner v New York 99 opinion itself: that the Constitution protected freedom of contract as part of the “liberty” safeguarded by the Due Process Clause of the Fourteenth Amendment, and that this rendered invalid state regulations on the market. 100 In Lochner , the Court struck down a state maximum hours law. 101 In his dissent in Lochner , Justice Oliver Wendell Holmes Jr famously accused the Court of establishing laissez-faire economics as constitutional law. 102

A second issue—distinct from the decision of Lochner but equally characteristic of the era, and equally formative of public attitudes toward the courts—was the use of the labor injunction. 103 The injunction rose to prominence in the 1880s as a potent tool to restrain labor. 104 Continuing on through the 1920s, labor injunctions remained one of the most visible interventions of the courts into political hot-button issues around labor, strikes, and industrial regulations. Some 28 injunctions were issued against labor in the 1880s. 105 In 1895, the Supreme Court approved an anti-labor injunction under the Sherman Act, 106 opening the floodgates: 122 injunctions were issued in the 1890s after this decision, and 328 were issued between 1900 and 1909. 107 As one commentator explained, a simple temporary injunction was all that was needed “because strikes are usually won or lost within a few days.” 108

Legislatures responded to the rise of the injunction, and the courts answered. In the process, the courts became still more deeply entangled in the debate about their relationship to the state democratic process. As Frankfurter and his coauthor Nathan Greene summarized the history, Americans were widely troubled by the “expansion of a simple, judicial device to an enveloping code of prohibited conduct, absorbing, en masse , executive and police functions and affecting the livelihood and even lives of multitudes.” 109 The historian William E. Forbath explained that “industrial ‘disorder’ and workers’ massive yet articulate defiance of judge-made law gradually persuaded state and national lawmakers and political elites that the old legal order was untenable and that labor’s exiled constitutional claims demanded recognition.” 110 Progressive politicians in the nation’s political elite increasingly shared labor’s worries about big business, judicial overreach in the name of property, and an erosion of the First, Thirteenth, and Fourteenth Amendments. 111

Labor-backed anti-injunction bills began appearing at state and national levels as early as the 1890s. But state laws that were favorable to labor—limiting injunctions, outlawing contracts that prohibited joining a union, and the like—were frequently struck down by the courts, or at least gutted by narrow construction. 112 Most famously, in 1914, Congress passed the Clayton Act, 113 which was supposed to rein in the use of the labor injunction by establishing rigorous requirements for the issuance of an injunction. 114 But the Supreme Court in 1921 narrowly construed the Clayton Act as merely a restatement of the prior law, removing the teeth from the law. 115

In the 1920s, Congress considered a series of proposals to limit the jurisdiction of the federal courts and to limit injunction power. 116 In 1928, Senator George Norris introduced a federal anti-injunction bill and began to hold hearings on the use of the injunction. These hearings demonstrated how far labor’s anti-injunction analysis had spread. The anti-injunction law was finally passed in 1932 as the Norris-LaGuardia Act 117 (drafted in part by Felix Frankfurter). 118 Ultimately the Wagner Act 119 would provide more robust protection for labor to associate and engage in collective action. 120

B. Federal Versus State

Both of these politically contentious lines of cases in the Lochner era (the substantive due process cases and the injunction cases) focused attention on the federal courts. But they weren’t exclusively the domain of the federal courts. Indeed, in terms of the number of cases decided, the state courts were by far the greatest offenders. When Forbath catalogued cases striking down labor legislation during the nineteenth century, the majority of those cases turned out to be state cases. 121 A study by the US Bureau of Labor Statistics in 1922 listed some three hundred cases where courts struck down labor-related statutes as unconstitutional during the first two decades of the twentieth century. 122 The report noted, “In all but a very few instances the decisions here noted have been those of courts of last resort of the State in which the law was enacted or of the Supreme Court of the United States.” 123

In short, the state courts were as much a part of the problem as the federal courts. Indeed, in terms of sheer number of cases decided, the state courts were a greater problem than federal courts. This creates something of a puzzle if we seek to understand Frankfurter’s scholarly focus on the federal courts. Why did he ignore the state courts? Two factors are worth considering: the relative priority of state versus federal law and the relative ease of bringing political accountability to bear on the state courts versus the federal courts.

1. The relative priority of state versus federal law.

While state courts did much of the work in striking down legislation and issuing injunctions, much of the law that they applied was federal. The constitutional cases predominantly cited the Fourteenth Amendment of the US Constitution. In terms of authoritative interpretation of the federal constitution, the US Supreme Court had the last word. Although state courts had similarly applied substantive due process to strike down legislation, the law at issue was federal. The Lochner decision itself, for instance, became the authoritative precedent once it was decided. And it is worth noting that at the time, the Supreme Court’s jurisdiction to review state court decisions was asymmetric: the Court only had jurisdiction to review those cases where the federal right was denied, but not where the federal right was vindicated. In other words, if a state high court struck down a state law as a violation of the federal Constitution, US Supreme Court review was unavailable. So, many federal question cases in the lower courts were never going to end up in the Supreme Court, and labor advocates and Progressive reformers alike felt as though the federal courts had a one-way ratchet in favor of the laissez-faire constitutionalism of federal law. 124

The predominance of federal law reinforced the dominance of the federal courts, and of the Supreme Court in particular, at the top of the judicial hierarchy. 125 The state courts, when left to their own devices, varied in the extent to which they enforced a strict freedom-of-contract jurisprudence. 126 There were high profile cases in which state courts struck down state regulations, but this was by no means the universal practice of state courts. 127

As for the injunctive cases, here too both state and federal courts were implicated, but the greatest focus was on the federal courts. As one scholar put it:

While the agitation against what was called “Government by Injunction” was to a certain extent independent of the agitation for the exemption of labor from the operation of the anti-trust laws, and embraced not only the federal but also the state courts, the injunction cases which aroused the greatest resentment were either directly or indirectly connected with the Sherman Act. 128

Again, this centered the attention on the federal courts, and not the state courts. As Frankfurter and Greene wrote, “The main considerations which underlie both national and state legislative proposals for regulating the use of the injunction in labor controversies are the same. But the federal aspects of the labor injunction are the more important.” 129 This also informed Frankfurter’s early interest in federalism as a general concept. He believed that the expanding regulatory power of the federal government, which began in the late nineteenth century with the Interstate Commerce Act 130 and the Sherman Act, 131 had made the relationship of state and national government a crucial issue for the courts. 132

2. The availability of political means for reining in the state courts.

Progressives found federal courts to be the more difficult problem because state courts proved more susceptible to political pressure. The most obvious point is that a great many state judges were elected and were thus sensitive to political pressure. Progressives and other partisans of labor could then use straightforward political channels to put a fear of the people into state court judges. 133

Beyond political pressure, there were even more direct means of using politics to express discontent with judicial decisions. A wide variety of proposals were debated in state constitutional conventions during the Progressive Era. They included proposals to abolish judicial review, to require unanimous or supermajority votes of judges to strike down legislative enactments, and to recall judges or judicial decisions. 134

The Progressive proposal that most riled the conservative legal establishment was the recall of judges. A high-profile conflict about this issue occurred when Arizona sought admission to the union in 1910. Arizona’s draft constitution included a broad recall provision that covered judges. But this provision, promoted by Progressive Democrats and labor leaders, received pushback from conservative Republicans. When Congress considered the enabling act to grant statehood to Arizona and New Mexico, the issue of the recall provision prompted debate and, ultimately, a veto from President William Howard Taft. President Taft argued that the judicial branch was valuable precisely because it was not bound to majoritarian democracy but was instead charged with upholding legal principles regardless of their popularity. 135 But by 1912, seven states had adopted the recall of judges, to the chagrin of conservative lawyers. 136

Another alternative was to allow the recall of judicial decisions. President Theodore Roosevelt was an outspoken proponent of this measure (even though he thought that recalling judges was a step too far). 137 He viewed this as part and parcel of the increased use of the referendum in state politics—another popular Progressive project. Not only should referenda be employed as a direct method of creating laws, he said, but he also argued that the people should be able to recall judicial decisions by referendum : 138 “[W]hen a judge decides a constitutional question, when he decides what the people as a whole can or cannot do, the people should have the right to recall that decision if they think it wrong.” 139 During the course of his quixotic third-party campaign for president on the Progressive Party ticket, Roosevelt would again advocate for the recall of judicial decisions: “We stand for an upright judiciary. But where the judges claim the right to make laws by finally interpreting them, by finally deciding whether or not we have the power to make them, we claim the right ourselves to exercise that power.” 140

In sum, then, the Progressives believed that they had a fairly extensive repertoire of resources to employ against state court activism. They were not always successful, of course. But the situation in the states nonetheless could sensibly appear to them to be considerably different from the situation in the federal courts.

III. The Politics of Abstention: Frankfurter’s Vision of Federalism

Justice Frankfurter was a Progressive. His understanding of federalism generally, and his abstention jurisprudence in particular, was deeply informed by the political controversies of the Progressive Era, as I describe in Part III.A. While Frankfurter’s scholarly writings on the federal courts often put technocratic analysis of caseloads and judicial administration in the forefront, as Part III.B sketches, he had his eye on the political implications of his judicial reform ideas at the same time. Most strikingly, the contours of Pullman abstention were lifted almost directly from a Progressive Era legislative effort to limit federal court jurisdiction, as I document in Part III.C. This Part concludes by reflecting on why Frankfurter’s Progressive vision for federalism and abstention gained traction even after the concerns of the Progressive Era were replaced by a new set of priorities in what can be called an era of “legal liberalism.”

A. Frankfurter and the Progressive Position

Lochner and the labor injunction cases provided the backdrop against which Frankfurter developed his views of the federal courts. Telling, perhaps, was his choice of heroes in this period. Frankfurter’s political hero at the beginning of his career was President Theodore Roosevelt. 141 After graduating from law school, Frankfurter worked briefly in private practice before going into government (and taking a pay cut), working for Henry Stimson, who had been handpicked by President Roosevelt to be the US Attorney for the Southern District of New York. 142 There, Frankfurter cut his teeth as a lawyer in an active office that investigated and prosecuted everything from small-scale fraudsters targeting immigrants to large-scale revenue fraud by major corporations. 143 When Stimson was appointed secretary of war by President Taft, Frankfurter went with his mentor to Washington and was given a post in the Bureau of Insular Affairs. 144 Frankfurter thought about leaving his job to campaign for former President Roosevelt’s third-party run in 1912. 145 In that campaign, Roosevelt made the courts a campaign issue, harshly criticizing courts that put economic interests over “human rights.” 146

Through his early work for the president’s appointees, Frankfurter was surrounded by individuals who were deeply concerned with the relationship between Progressive reform and the courts. He shared that concern, and in the years to come it continued to be one of his major interests. Frankfurter was as invested in expanding the space for Progressive legislation as anyone. In 1922, Frankfurter defended a minimum wage law in the case of Adkins v Children’s Hospital , 147 losing in the Supreme Court. 148

Frankfurter shared the basic Progressive concerns about the courts during this period. In a 1916 article, Frankfurter said that there were two major issues presented to the Supreme Court since the 1890s. The first was the scope of congressional regulatory power under the Commerce Clause (later to become essential to the New Deal’s expansion of federal power). 149 The second was the extent to which state regulatory power was limited by judicial application of the Fourteenth Amendment (the Lochner line of cases):

There was thus presented to the Court in greater volume and with unparalleled intensity, the determination of the powers of the Nation and of the State, and a delimitation of the field between them—questions whose decision probably touched the public at once more widely and more immediately than any issues at any previous stage of the Court’s history. 150

Frankfurter’s other hero during this time was Justice Holmes. Frankfurter consciously worked to promote Holmes’s reputation as a critic of federal court overreach. 151 Frankfurter was fond of quoting Holmes’s characterization of the Lochner period: “When twenty years ago a vague terror went over the earth and the word socialism began to be heard, I thought and still think that fear was translated into doctrines that had no proper place in the Constitution or the common law.” 152 Frankfurter saw Holmes’s dissent in the Lochner case as a turning point in terms of articulating the rightful place of courts as deferential to state regulation. 153

As Frankfurter observed the anti-labor decisions of the Supreme Court into the 1920s, he continued to voice a Progressive critique. In a series of magazine articles and editorials published in the 1920s, Frankfurter repeatedly endorsed Holmes’s deferential approach to the democratic process. 154 Frankfurter rejected Progressive proposals to amend the Constitution to repeal the Due Process Clause or protect child labor. Instead, as historian Brad Snyder has noted, “Frankfurter preferred Holmes’s democratic solution that the Fourteenth Amendment should not be invoked ‘beyond the absolute compulsion of its words to prevent the making of social experiments.’” 155

Frankfurter’s basic belief about the federal courts was that they were in the habit of overreaching. Frankfurter thoroughly internalized this standard Progressive position, and indeed by the 1920s, helped to shape it. His own spin on the position was distinctive. Unlike some Progressives, Frankfurter identified with the federal judiciary such that he was still anxious to preserve the prestige and autonomy of the federal courts—even as he sought to rein in what he saw as abuses. This concern with protecting the interests of the federal courts could be seen in the way that Frankfurter often coupled the Progressive critique of the courts with another theme that motivated conservatives as well: reducing the workload of the federal courts in order to improve judicial quality.

B. Frankfurter and the Burden on the Federal Courts

The caseload of the federal courts grew enormously from the 1870s into the twentieth century. In his influential book, The Business of the Supreme Court , Frankfurter and his former student, Professor James M. Landis, chronicled one aspect of this story in detail: the dramatically expanding caseload of the Supreme Court. A recurring theme of the book was that the Court was subject to human constraints. Supreme Court justices would turn out subpar work when overtaxed with the heavy burdens of riding circuit (in the early days of the Court) or of excessive caseloads (in the later era of the Court). This principle, that an overworked court is less effective, resonated with such conservative jurists as then-Chief William Howard Taft 156 as well as with Progressives. But for Progressives, the reduction of Supreme Court caseload nicely dovetailed with the objective of reducing federal court interference with regulation.

Frankfurter put both of these interests together in his written works in the 1920s. In his explanation of the political discussions about the modification of federal jurisdiction, one can catch glimpses of the basic considerations that would motivate some of Frankfurter’s later federalism jurisprudence:

The continuous effort of twenty years to enable the federal courts to cope with mounting litigation by reforming their cumbersome and wasteful organization was paralleled by an equally vigorous movement to enable them to do their work by reducing the range of their business. For twenty years the Congressional Record registers this attempt to limit jurisdiction. The more moderate proposal was to increase the pecuniary amount necessary for resort to the federal courts. The more far-reaching remedy was the old attempt to remit litigation affecting foreign corporations to the state courts. 157

The theme was repeated in another article a year later, in which Frankfurter observed (favorably) that there had been repeated calls for “a reexamination of the present scope of federal litigation,” with the goal of “shutting off at its sources business that eventually reaches the Supreme Court.” 158 One of the key aspects of this effort was the reduction of federal jurisdiction in favor of state jurisdiction: “This involves relinquishing of federal concern over conduct more appropriately left to state action as well as providing for trial in state courts of cases now exclusively entrusted to United States courts.” 159 It was a theme he would return to again, 160 one of obvious importance to the development of abstention.

In most of his scholarly work, Frankfurter emphasized his technical expertise and downplayed his political commitments. His account of the jurisdiction-modification plans underplays the Progressive political overlay that provided much of the excitement—and controversy—behind the congressional proposals. 161 For the many efforts to modify the jurisdiction of the federal courts in the first decades of the twentieth century there were two primary motivations, and Frankfurter sometimes emphasized one or the other. Some proposals were simply an effort to cope with mounting litigation. But others were motivated more directly as responses to the substance of the federal courts’ most politically charged decisions. Frankfurter of course recognized this.

To take just one example, Frankfurter was troubled by the fact that asymmetric review of state court decisions by the Supreme Court led to geographical disparity in the application of substantive federal (constitutional) law. Especially important on this topic were a series of cases about worker’s compensation. In 1911, the Supreme Court indicated that worker’s compensation laws would pass scrutiny under the Due Process Clause. 162 But then New York’s high court played the anti-regulatory role. Its 1911 decision invalidating the first American worker’s compensation law 163 attracted considerable national attention. 164 But the Supreme Court could not review the decision because the New York court had “vindicated” a federal right, and under the statute governing Supreme Court review of state court decisions, such vindication was unreviewable. The Washington Supreme Court later affirmed the constitutional validity of similar workers’ compensation legislation. 165 As Frankfurter and Landis explained, there was “a wide-spread feeling that, in practice, constitutionality turned on geography.” 166 Supreme Court review could ensure that the Constitution was at least interpreted uniformly across the nation. But simply expanding the federal appellate power was not a satisfactory solution, for that would simply increase the burdens on the federal courts. Certiorari jurisdiction for the Supreme Court was a solution proposed by conservative members of the bench and bar. 167 Congress passed expanded certiorari in 1916, and it remarkably did so without debate and without any serious opposition, as Frankfurter noted with satisfaction. 168

While the move toward greater certiorari jurisdiction helped, the concern about federal caseloads continued into the 1920s. What Frankfurter seems to have learned from his careful study of the ongoing debates about federal courts was that Progressives and conservatives shared a concern that the federal courts, and perhaps especially the Supreme Court, were doing too much. The Progressives were more concerned about the substance of federal law standing as an obstacle to regulatory experimentation; legal conservatives were more concerned about the burden on the courts. 169 Frankfurter himself believed that the federal courts were an important institution, and so he shared both concerns. 170 To put it differently, while the Progressive position was political, the concern about overburdened dockets was a position that had bipartisan appeal.

C. Application of the Lessons of the Progressive Era: The Legislative Origins of Abstention

Frankfurter’s interest in the legislative efforts to rein in federal court jurisdiction provided him with more than a background for his own thought about federalism and the courts. In at least one case, it provided Frankfurter with a concrete approach to keeping cases in the state courts—an approach which he imported directly into his abstention jurisprudence.

In 1910, the House of Representatives considered an amendment to a bill that would have restricted the federal courts’ injunctive power. Under the proposed amendment, the district courts would have been prohibited from taking jurisdiction of suits “to suspend, enjoin, or restrain the action of any officer of a State in the enforcement, operation, or execution of a statute of such State, upon the ground of the unconstitutionality of such statute.” 171 Frankfurter described this proposal in an article some sixteen years later. 172 The language of the amendment is not exactly pellucid. It seems to focus on federal injunctive power in the situation where that power is premised on the unconstitutionality of a state statute. To explain the purpose of the amendment, Frankfurter quoted Democratic Representative William A. Cullop of Indiana:

The amendment does not destroy the constitutional right of any citizen to have an investigation of his cause in a Federal court. . . . This simply gives the State courts the right to construe their own statutes before the Federal courts construe them in given cases, in order that the doctrine of the State court in the construction of a statute may be before the Federal court when it is called upon to review the statute. 173

The amendment was ultimately rejected, according to Frankfurter, not on its merits but as a political strategy in order to keep the issue from distracting from the other reform items on the bill to which this amendment had been added. 174

In his written description, Frankfurter did not flag the charged political dynamics of this proposal. But the House debate makes it quite clear that of central concern to several representatives was the interpretation of “police power” regulations—in other words, exactly the kind of matters that were central to the Lochner line of cases. “The purpose of his amendment is to have the State[ courts] construe their own statutes before they are construed by the Federal courts, is it not? . . . Especially statutes which create police regulations . . . [s]uch as fixing fares, regulation of charges, and so forth,” Representative Cullop asked in one debate. 175

Frankfurter may have had something like this in mind when he suggested in 1928 that the appropriate balance between federal and state courts would take into account specific kinds of issues. 176 Frankfurter argued that the distribution of responsibilities among these different judicial systems was a matter of “practical sentiment,” of pragmatic evaluation. 177 The details of the proper distribution would vary depending on the issue: “Some federal rights are readily adapted to enforcement by state tribunals; others are clearly meant for the federal courts. Some federal rights involve no lively local interests; others are heavily enmeshed in conflicts between state and national authority.” 178

Whatever Frankfurter was thinking in 1928, Frankfurter’s opinion in Pullman put into effect Cullop’s proposal almost precisely. The holding of Pullman is that federal courts should abstain when they are faced with an unsettled issue of state law, the resolution of which might remove the necessity of deciding the federal constitutional issue. 179 Alternatively, it could be articulated in Cullop’s words as “giv[ing] the State courts the right to construe their own statutes before the Federal courts construe them.” 180

The approach that Frankfurter would adopt in his abstention jurisprudence was essentially identical to the legislative proposal that Frankfurter himself wrote about in his study of the federal courts. This seems more than mere coincidence. It provides strong circumstantial evidence that Frankfurter’s later federalism jurisprudence should be seen as a development of his observation of the federal courts’ politics in the first decades of the twentieth century.

D. Putting Federalism in Context: A Preliminary Look at Why Frankfurter ’ s Vision of Federalism and Abstention Succeeded

Federalism is not the only issue for which the Progressive Era informed Frankfurter’s jurisprudence. The most familiar and distinctive element of Frankfurter’s judicial philosophy, his commitment to judicial restraint, stems from the same source. Part III.D.1 explains the parallels between Frankfurter’s commitment to federalism and his commitment to judicial restraint. Frankfurter believed that one of the lessons of the Lochner era of jurisprudence was that courts should generally refrain from striking down democratically enacted legislation. While the Lochner -era courts generated controversy by striking down Progressive regulatory laws, Frankfurter carried the principle into his jurisprudence on civil rights and civil liberties. Many of Frankfurter’s colleagues on the Court rejected his philosophy of judicial restraint and seemed to be put off by Frankfurter’s tendency to craft his jurisprudence in the shadow of the Progressive Era. Justices Hugo Black and William O. Douglas in particular engaged in a long-running and sometimes acrimonious debate with Frankfurter about this subject. 181

Strikingly, federalism was an area where Frankfurter was able to win over some of his fellow justices, as I describe in Part III.D.2. This raises another question: Why were Frankfurter’s ideas about federalism successful while his views on judicial restraint were not? One might have thought that they would either succeed or fail together, given that both are derived from Frankfurter’s view of the courts in the Progressive Era.

Part III.D.3 suggests one part of the answer. Drawing on recent cultural and intellectual history, it briefly describes what we can call the “New Deal federalism fad.” While full development of this point would require a book, this short Section serves as a reminder of federalism’s flexibility and relevance to different constituencies for different reasons. Frankfurter’s federalism was motivated in large part by his formative experience in the Progressive Era. The New Deal federalism had its own flavor, an effort to integrate localism with the national development vision of the New Deal state. It was called at the time a “New Federalism.” 182 A full exploration of how Frankfurter’s vision of federalism convinced his colleagues would require detailed studies of both jurisprudence and interpersonal relationships. But for now, it’s worth simply observing, as a starting point, that new ideas about federalism helped facilitate the rise of New Deal liberalism.

Frankfurter’s vision of judicial restraint originated in the same experiences with Progressive judicial politics that informed his thoughts on federalism. Most of his colleagues abandoned judicial restraint during the Warren Court years. 183 But federalism lived on. The practical relevance of federalism to the New Deal era helped to facilitate federalism’s transition from Progressivism to liberalism. 184 The simple fact is that Frankfurter’s federalism jurisprudence wasn’t quite as out of touch with his times as some of his other positions on the Supreme Court were.

1. Learning the lessons of the Progressive Era and bringing them into the era of legal liberalism.

From the evidence surveyed, one can put together the pieces for a possible way of understanding Frankfurter’s long-term vision of federalism in his jurisprudence. 185 Frankfurter internalized the belief that the federal courts posed significant risks of harm if they interfered with democratically enacted legislation. Judicial restraint was a virtue. Still, it was not a value that could be easily protected by legislation—even if desirable subject-matter restrictions, like those in the Clayton Act, were readily subverted. But both conservatives and progressives could agree on trying to reduce the scope of federal judicial activity if the objective was articulated in a palatable and nonpartisan manner, such as when it was described as an effort to clear crowded dockets.

In federalism, Frankfurter found an abstract principle that could support cutting back on federal court decisions. Frankfurter’s tendency to invoke the general principle of federalism was informed by his background belief that federal jurisdiction has very little constitutional specificity. For example, in an article coauthored with then-student James M. Landis, he explained his belief that “the Constitution has prescribed very little in determining the content, and guiding the exercise, of judicial power.” 186 This is not to suggest that Frankfurter was insincere in his commitment to federalism. 187 But it is to suggest that, particularly in the abstention context, Frankfurter was strategic in his deployment of the concept. He used it to carve out a limit on the federal courts’ jurisdiction that legislators had tried and failed to provide during the Progressive Era.

So far, this story parallels that told by other scholars about Frankfurter’s civil rights jurisprudence. Frankfurter’s appointment to the Supreme Court had been greeted with enthusiasm by liberals, who expected Frankfurter to emerge as a model liberal justice. 188 As it turned out, however, Frankfurter did not support the rights-based jurisprudence that was becoming a hallmark of legal liberalism in the middle of the twentieth century. Instead, he stuck to the lessons he had learned in the Progressive Era and repeatedly urged his colleagues on the Court to give greater deference to the democratic legislature. 189 In this, Frankfurter disappointed his earlier liberal supporters and clashed with many of his colleagues. Frankfurter was a relic of an earlier age, a Progressive who had failed to make the transition to liberalism. 190

Frankfurter’s vision of federalism (with abstention as a concrete application of this principle) was consistent with his Progressive commitments. But unlike his more directly stated views on deference to legislatures regarding the subject of civil rights, Frankfurter was able to convince his colleagues to sign on to the idea of judicial federalism. It was not an idea that the Court had articulated before. But it was an idea that survived the Progressive-to-liberal transition in a way that judicial restraint generally did not.

2. Frankfurter and Black on abstention.

Justice Black’s reaction to Frankfurter’s Progressive ideas is a marker of the difference between the reception of Frankfurter’s notions of judicial restraint and federalism. Black became well-known on the Court as an absolutist about the Bill of Rights: he was adamant about the judiciary’s responsibility to enforce the Bill of Rights as law without any qualification. He and Frankfurter clashed repeatedly on this point and their interpersonal relationship was delicate and often acrimonious. 191 Yet, despite the fact that Frankfurter’s federalism arguments for abstention mirrored the reasons for judicial restraint more generally, Black bought into the idea of abstention. He would ultimately go beyond Frankfurter in creating the most familiar abstention doctrine in Younger v Harris , using Frankfurter’s own phrase, “Our Federalism” 192 —though without crediting Frankfurter. 193

Characteristically, once Black accepted the principle of federalism in the abstention context, he was more systematic in applying it than Frankfurter. They divided over the issue early on in the 1943 decision Burford v Sun Oil Co . 194 Black, writing for the majority, built on Pullman to hold that the federal court should abstain from deciding a case when its decision would run the risk of disrupting a complex state regulatory scheme. 195 Black claimed that this was an application of the principle in Pullman that a federal court exercising its equitable powers should do so in a manner that would “further[ ] the harmonious relation between state and federal authority.” 196 The extension was facially a sensible one, but Frankfurter would have none of it.

From one angle, Frankfurter’s position in his Burford dissent was ironic. He would apply abstention principles to protect state adjudication in federal question cases, where one might have thought that it would be most appropriate for federal courts to adjudicate state matters. But he would not apply abstention principles to the diversity cases where state law controlled due to Erie Railroad Co v Tompkins . 197

But, in fact, Frankfurter’s position made a great deal of sense. If the goal of abstention was, as I have argued, to reduce the opportunities for the federal courts to issue federal injunctions and set constitutional precedents, then the federal question cases were the problem cases. Just five years before, Erie had established that federal courts had to apply state substantive law in diversity cases. 198 Justice Louis Brandeis in Erie had been pursuing the same Progressive objective as Frankfurter. 199 So Frankfurter would have no reason to think that abstention was needed to accomplish his objective in the diversity context.

In his dissent in Burford , Frankfurter argued that it mattered that the case was brought as a diversity action, and that in such a context the federal courts were directly charged with the task of deciding matters of state law. 200 In other words, the constitutional avoidance rationale that had figured so prominently in Pullman was missing, and Frankfurter thought that the Court should have relied upon that fact to distinguish Burford and refuse to abstain.

In any case, though, it was Black who created the most familiar of the abstention doctrines, and he did so by relying on Frankfurter’s federalism theory. In a majority opinion written by Black in Younger , the Supreme Court held that federal courts should abstain from exercising their jurisdiction when necessary to avoid interfering with ongoing state court criminal proceedings. Black wrote that the “sources of the policy are plain” 201 and proceeded to offer two bases for the abstention principle. Frankfurter’s influence was immediately apparent. The first source of justification for abstention was the historical tradition of the chancellor’s discretion in equity. 202 The second and “even more vital consideration” was “comity” or federalism:

[T]hat is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. 203

Black then invoked the phrase that Frankfurter himself had first introduced to the Court: “This, perhaps for lack of a better and clearer way to describe it, is referred to by many as ‘Our Federalism.’” 204 The scope of Younger abstention, premised on “Our Federalism,” applies now not only to state criminal proceedings (covered by the original decision) but also to state enforcement actions from private suits (such as contempt proceedings) 205 and enforcement actions analogous to criminal proceedings (such as public nuisance cases). 206 Black gave Frankfurter no credit, not even including a citation to Pullman . But when it came to Black’s justification for abstention, Frankfurter had been there first.

3. Why federalism succeeded where judicial restraint failed.

An entire article could be written to flesh out the attitudes of the other justices toward federalism, and to explain why judges who did not agree with Frankfurter on judicial restraint as a general matter might have found the federalism ideology persuasive. For present purposes, it will suffice to note three points about the transition from Progressivism to liberalism, a transition which many scholars associate with the New Deal. 207

First, federalism survived the New Deal period without much political controversy. The New Deal’s liberal political economy of a large and active federal government proved quite able to function in tandem with local and regional administrations. If the New Deal marked a new era of big government, in other words, it was one that came to rely on federal-state cooperation. 208 (This is at odds with the association of federalism with “small government,” as was common in the Rehnquist era, for example. 209 ) In contrast, the debate about judicial engagement and activism was at the center of national politics, thanks to President Franklin D. Roosevelt’s court-packing plan. 210 Frankfurter’s inclination was to defer to the executive on court-packing, a move that embittered his relationship with his mentor, Justice Brandeis, and arguably affected his relationships with colleagues when he joined the Court. 211 That federalism did not enter into such a fraught political and ideological fight was probably helpful.

Second, a fad for localism meshed nicely with the vision of federalism that Frankfurter articulated. In the 1920s and 1930s, as Professor Jessica Bulman-Pozen has noted, “[a] variety of proponents self-consciously embraced regionalism as an answer to looming ‘vaster and vaster federal bureaucracies’ and a ‘centralizing state.’” 212 Many leading New Dealers sought to construct linkages with traditions of localism in order to provide cultural rootedness for their programs and avoid the accusation that their social programs were simply top-down impositions. One example of this kind of thinking in action was found in the Tennessee Valley Authority (TVA) project, run by Frankfurter’s protégé David E. Lilienthal. Lilienthal had been a student of Frankfurter’s at Harvard and then obtained a job in the Roosevelt administration on Frankfurter’s recommendation. 213 Lilienthal believed that the future of an advanced liberal society lay in combining centralized expertise with localized inputs and controls. It was this combination that he endeavored to put into action with the TVA, though the project in fact fell far short of his goals. 214

Lilienthal’s attempt at implementation may have been unique, but his sentiment was not. There was robust cultural movement for localism in America in the 1930s that carried forward into the 1940s and beyond. Historian Daniel Immerwahr has documented this tendency in academia, in government, and in popular culture. 215 Bulman-Pozen has similarly documented widespread interest in regional units of American society, suggesting that Americans sought to avoid the excessive homogenization of American culture and society in the face of a growing federal government. 216

Writing in 1938, Professor Jane Perry Clark identified a vast array of formal and improvised practices of cooperation and collaboration between national and state governments to effect policy objectives. She identified this as a “New Federalism.” 217 Reviewing the book in the Harvard Law Review , Professor David Riesman applauded Clark for revealing the wide extent of national-state cooperation already in practice. 218 He hoped that it might mark a path forward that would transcend the usual divisions between the “sloganeers” of “states’ rights” and “centralization.” 219 Riesman opined that “[c]ooperative federalism finds support in our constitutional tradition (as well as in our constitutional law).” 220 He praised its practical potential for administering federal policies on a state level, and also its democratic virtue in giving space for “autonomic forces.” 221 Riesman was a star student of Frankfurter’s who had recently completed a clerkship (on Frankfurter’s recommendation) with Justice Brandeis, 222 so Frankfurter certainly read the review. He too was evidently impressed with Clark’s work, and cited it in his opinion in Palmer . 223 For our purposes, the basic point is that Frankfurter’s invocation of judicial federalism was not a mere aberration, but gave judicial expression to a sentiment with considerable cultural currency.

Third, Frankfurter’s judicial federalism deferred to state courts , unlike his more general deference to state legislatures in civil rights cases. Whatever doubts the federal courts may have had about the state courts, it may have been easier for liberal judges to defer to a court than to a legislature. One of the lessons that legal liberals took from the court-packing fight was that the judiciary was an important check on politics. 224 If one thought that the role of courts was (at least in part) to provide an independent check on the political process, 225 one kind of court (federal) could defer to another kind of court (state) without threatening the fundamental role of courts in the system. 226 But deference to legislatures could be seen as an abdication by the courts of their essential role. Frankfurter’s judicial federalism theory would have been at least more generally in accord with the principle of judicial competence so central to legal liberalism 227 than his broader deference to democratic legislatures.

Frankfurter’s federalism jurisprudence was deeply informed by the Progressive Era. But it was also in tune with an important line of thought in the New Deal era. This was doubtless helpful in gaining traction for Frankfurter’s federalism ideas. A detailed account of how justices like Black thought about federalism will have to await another paper. But for the moment, the New Deal context at least provides clues as to why Frankfurter’s federalism jurisprudence managed to persuade his colleagues in a way that his judicial restraint theory did not.

Frankfurter’s career spanned a divide in the politics of federal courts. He grew up in the era of Progressivism. There were many divisions among Progressives, but Progressives generally shared skepticism about courts interfering with legislative reforms. They tended to dislike rigid constitutional rights, distrust federal courts, and preferred for matters to be worked out through politics rather than through legal decision.

Frankfurter finished his career in the era of legal liberalism. 228 Legal liberalism can be thought of as an approach to the courts that valorized and celebrated judicial protection of individual rights. In many ways, this orientation toward the federal courts could hardly have been more opposed to the Progressive Era distrust.

IV. Three Futures for Federalism-Based Abstention

In Justice Frankfurter’s hands, federalism became a constitutional value that provided the Supreme Court with a rationale to restrain the jurisdiction of the federal courts. The purpose for this doctrinal innovation was connected to a particular political perspective on the judiciary. A clear understanding of this history provides the first step for analysis of abstention’s merits. 229 The context in which Frankfurter created federalism-based abstention is different from our own; his motives may have differed from ours. There is always the risk of a genetic fallacy in criticizing a current doctrine based on the history of its creation. Still, the history of its creation can inform contemporary analysis.

The history can provide a jumping-off point for at least three different futures for federalism-based abstention. Two of them are cautious or critical about abstention. The history of federalism-based abstention should remind originalists that the doctrine is only loosely connected to the constitutional text, a problem considered in Part IV.A. An originalist future for abstention would basically maintain the Supreme Court’s current status quo, limiting abstention’s application to equitable cases. The history should meanwhile remind legal liberals that abstention was designed to provide federal courts an “out” when called upon to adjudicate issues of federal constitutional law (in tension with the rights-protecting theory of the federal courts held by many legal liberals). A legal-liberal future might cut back on abstention’s application, analyzed in Part IV.B. But a third possible future for federalism-based abstention is to embrace a robust, Frankfurterian version of the doctrine as a means of curbing federal court power and, at least on the margins, putting more adjudicative power in state courts. This possibility might appeal to modern progressives who are wary about a largely conservative federal judiciary as well as to conservatives who want to promote judicial restraint, and it is considered in Part IV.C.

A. The Textual Problem

In the Constitution, the subject matter jurisdiction of federal courts overlaps with that of state courts. But there is no textual hook in the Constitution for the idea that federal courts should sit out a case in order to allow a state court to adjudicate an issue. The Tenth Amendment provides merely that the states retain powers not explicitly delegated to the federal government, which is nothing more than restating explicitly what is already implicit in the Constitution’s text and structure—the familiar theory that the Constitution contains enumerated powers. 230 It’s possible that there is something more to the Tenth Amendment—that it constitutes a substantive outer limit on federal power—but that idea is controversial. 231 The Supreme Court does not endorse that position. 232 The most straightforward reading of the Constitution is that federalism will come before the federal courts as a substantive problem. For example, the federal courts have to decide, as a matter of substantive constitutional law, when the national government has—or lacks—the power to regulate a given subject. 233 But other than the Tenth Amendment, there isn’t really a constitutional hook to hang a federalism theory on. In sum, the Constitution provides pretty sparse grounds for abstention doctrines.

In the absence of direct textual support, originalists of various stripes will (sometimes) look to historical practice to inform their constitutional interpretation. 234 This is where Frankfurter comes in—eventually. For most contemporary originalists, those who subscribe to the “original public meaning” approach, 235 practices close in time to the adoption of the Constitution are of greatest importance in that they might provide some evidence of the meaning of key terms in the document at the time of enactment. 236 (Some textualists might value historical practice less and prefer instead to simply look for historical evidence of the meaning of the words; 237 original intent originalists—a small minority now—might value historical practice more. 238 ) When it comes to abstention, the early history doesn’t really help provide an originalist pedigree to federalism-based arguments. There is existing scholarship that shows early exercises of discretion by the courts, 239 but not based on federalism. There are reasons to think that courts in equity cases could abstain from issuing a decision. But this does not rely on federalism considerations at all. 240

The history of Frankfurter’s federalism-derived abstention doctrine doesn’t help an originalist connect it to the constitutional text. It also doesn’t help in terms of tying it to deep historical practice. Rather, it does the exact opposite. The history presented in Parts I–III of this Article emphasizes the novelty of Frankfurter’s invention. For originalists who believe that legitimate constitutional interpretation requires ascertaining the meaning of the Constitution at the time of its adoption, Frankfurter’s originality is a liability.

Originalists could respond to this critique by ending abstention in actions at law, where federalism considerations would necessarily have to operate outside the framework of equity. Originalists can accept equity-based abstention as firmly rooted in the common law and equity tradition in which the federal courts were created. Within the equity framework, a court could even take into account federalism and comity. The equity maxim is that “equity follows the law”; 241 federalism is part of the law in the general sense that the Constitution creates a system of limited (enumerated) powers on the part of the federal government and retained (unspecified) powers by the states. Federalism principles could be weighed when considering whether to grant an injunction. But federalism does not provide a sound, text-based reason for abstaining from actions at law.

This originalist future for abstention would formalize the cautious, modest approach to abstention that the Supreme Court has already seemed to favor. In Quackenbush v Allstate Insurance Co , 242 the Court declined to apply Burford abstention to an action at law. 243 The assumption seems to have been that abstention was limited solely to the context of equity. The Court was not clear as to whether this applies across the board to all forms of abstention, and it has never definitely ruled out the possibility of staying federal actions at law on an abstention theory. 244 The originalist approach sketched in this Section would generalize the idea in Quackenbush and rule out the possibility of abstaining in actions at law.

B. The Judicial-Role Concern

There is a long tradition of legal scholarship that emphasizes the importance of the judiciary protecting individual rights. This tradition has sometimes been labeled “legal liberalism.” The term is imprecise but will do as a placeholder for present purposes. Legal liberals believe that it is an important responsibility of the judiciary to enforce individual rights and to protect the “discrete and insular minorities” 245 who might be vulnerable to the vicissitudes of the political process. 246 There are a number of theoretical paths that one could take to arrive at this position. Professor John Hart Ely’s theory of the courts as protecting individual rights in a countermajoritarian manner might be the most influential theoretical statement of legal liberalism. 247 The Warren Court’s rights-protective jurisprudence is the classic example of legal liberalism in practice. Legal liberals prefer to have an engaged judiciary, confident and assertive when it comes to individual rights. 248

The history of abstention presented in this Article should be troubling to legal liberals in a quite different sense than it troubles originalists. While the originalists might object to the method by which the Court arrived at abstention doctrine, the liberals might be more troubled by the substantive uses of abstention, specifically when abstention is employed to allow federal courts to avoid deciding cases involving federal rights protections.

1.  Pullman as a cautionary tale.

Pullman is a classic example of the anti-liberal potential of abstention. In Pullman , Frankfurter wrote for a majority that declined to issue a constitutional ruling on the Equal Protection Clause. The Texas Railroad Commission had issued an order that all sleeping cars operating in Texas had to be in the charge of a Pullman conductor, who was white, as opposed to a Pullman porter, who was black. 249 Prior to the order, trains with only one sleeping car were in the charge of the porter. 250 The order was transparently motivated by race and the trial proceedings included “extensive testimony by white women relating their fear of being alone in a Pullman coach with a black porter without a white conductor.” 251 The order was challenged as a violation of the Equal Protection Clause and as a statutorily defective use of power by the Railroad Commission. 252

Frankfurter’s opinion for the Supreme Court acknowledged at the outset that the case raised “a substantial constitutional issue.” 253 Frankfurter went on to say that the issue was “more than substantial. It touche[d] a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open.” 254 The theory was that the Texas court might be able to construe the state statute in such a way as to eliminate the constitutional problem. Maybe. But the result was of course to put off deciding the equal protection issue for several years. The most generous reading of the opinion is that it constituted a clever strategic move by Frankfurter: maybe it was a way to provide that the Court wouldn’t fracture over the substantive constitutional question, a way to ensure that the Court wouldn’t take a case until it was ready to decide the matter in a progressive manner, or a way to let public opinion catch up. More troublingly, it may be read simply as a decision to insulate the Supreme Court from a public controversy and to preserve institutional capital on the “sensitive” issue of racial discrimination.

Legal liberals should certainly be troubled by the final possibility. For the legal liberal, a countermajoritarian, rights-protective decision is precisely the kind of decision that courts ought to be making when given the opportunity. There might be reasons to delay making such a decision, but they have to be good ones to overcome the default setting in favor of judicial engagement. And federalism-based reasons for delay ought not to be very persuasive to legal liberals.

2. Reasons legal liberals might be willing to delay the judicial protection of rights (and why federalism is not a good reason).

Legal liberals might acknowledge that there could be reasons for a court to delay or decline to decide an issue of rights. For instance, there has been a years-long debate about the extent to which courts can bring about social change and to what extent they are bound by existing social mores. 255 Depending on their view of that debate, a legal liberal might be sympathetic to a strategy that tries to ensure that the Supreme Court doesn’t decide a case until it is likely to do more good than ill. 256 One might see this as a significant countervailing consideration against the default setting of enforcing federal law.

But federalism as an end in itself will often be a dubious reason for not taking jurisdiction to enforce a facially applicable federal law. 257 To the contrary, federalism considerations—such as allowing states to set their own policies and chart their own courses—are especially worrisome reasons for denying enforcement of a federal law that protects individual rights. 258 One of the main purposes of federal protection of individual rights is, on this account, to work in a countermajoritarian manner. It is to protect the discrete and insular minorities that are not able to protect themselves through political processes. If these conditions apply, one might think that the Supremacy Clause ought to apply to prevent infringement on those rights. It is precisely in the rights-based cases where federalism is an issue that one might think the federal courts should be most assertive and protective of individual rights.

One might respond that state courts are able to apply federal law too. Much of the federal courts literature posits that state and federal courts must be assumed to be equals. This is sometimes called the “parity” assumption.[ fn value="259"] For defenses of parity, see generally Michael E. Solimine and James L. Walker, Constitutional Litigation in Federal and State Courts: An Empirical Analysis of Judicial Parity , 10 Hastings Const L Q 213 (1983); Paul M. Bator, The State Courts and Federal Constitutional Litigation , 22 Wm & Mary L Rev 605 (1981). For a critique of the parity principle, see generally Burt Neuborne, The Myth of Parity , 90 Harv L Rev 1105 (1977). See also Erwin Chemerinsky, Parity Reconsidered: Defining a Role for the Federal Judiciary , 36 UCLA L Rev 233, 237 (1988) (arguing that federal courts “provide an alternative forum for the vindication of constitutional rights,” not that federal courts are “better than state courts”). A useful, though dated, survey of the debate is Michael Wells, Behind the Parity Debate: The Decline of the Legal Process Tradition in the Law of Federal Courts , 71 BU L Rev 609 (1991). One article presented as a rebuttal to Professor Burt Neuborne’s critique of parity actually reinforces the point that federal and state courts are different: it argues not that federal and state courts reach the same results, but rather that Neuborne was wrong to assume that federal courts were inherently superior to state courts in enforcing individual rights. See generally William B. Rubenstein, The Myth of Superiority , 16 Const Commen 599 (1999). See also Sutton, 51 Imperfect Solutions at 208 (cited in note 17). Another line of federal courts scholarship uses the term “parity” differently, to refer to the equality of all federal judges under Article III. See Akhil Reed Amar, Marbury , Section 13, and the Original Jurisdiction of the Supreme Court , 56 U Chi L Rev 443, 472 (1989); Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction , 65 BU L Rev 205, 221 (1985). But many scholars have doubted that this formal assumption actually reflects reality. The historical preference of individuals asserting federal rights claims for federal courts should be enough to make one doubt the existence of parity, one scholar wrote decades ago. 260 Parity, he concluded, was a myth. 261

There is some anecdotal evidence that judges are willing to reach for abstention more aggressively in certain types of cases. A study by Professor Theodore Eisenberg reported that judges in Los Angeles seemed to be “straining to abstain” when cases involved challenges to statutes, ordinances, or other official policies. 262 The sample of just two years’ worth of cases was too small for the study to draw any firm conclusions, but of the eleven cases in which the issue was seriously litigated, “one was settled” and “three others offered virtually no ground for Pullman or Younger abstention.” 263 Of the remaining seven cases, abstention was ordered in six. “In none of the cases was abstention clearly mandated and in some it seemed erroneous,” Eisenberg reported. 264 Parity between federal and state courts may very well be mythical in practice.

The history presented in Part III sharpens the point. Legal liberals have been right to worry that abstention would get in the way of protecting federal rights. The story of Frankfurter and the Progressive politics in the background of abstention doctrine show that the failure to protect federal rights was not just an incidental byproduct of protecting federalism. Protecting federalism was, for some Progressives, a way of intentionally reducing the scope of federal rights-protection. It is not too much of a stretch to say that the federalism rationale that Frankfurter created was not built in reliance on a mythical parity. Instead, he advanced the federalism rationale precisely because he believed that parity was a myth. For a Progressive like Frankfurter, the political motivation underlying abstention doctrine seems very likely to have been to avoid constitutional rulings by federal courts. To a legal liberal, this should be troubling: if the federal judiciary’s raison d’être is protecting federal rights, then abstention seems often misguided, if not perverse.

C. Restraining the Courts

Strands of thought in both progressivism and in conservatism are skeptical of judicial power. There is a long and respected history of judicial restraint that transcends crude political categories. Legal scholars who invoke judicial restraint often use the term to reference incremental development of the law by the case method. 265 That’s part of the idea. But there is a still broader sense for the idea of judicial restraint, which is thinking of the judiciary as self-restrained out of respect for other, more democratic branches of government. 266 This broader version of judicial restraint is a preference for matters of democratic governance to be resolved through democratic politics as often as possible. 267 For these proponents of restraint, Frankfurter’s vision of federalism-based abstention may be appealing. 268

Many modern progressives are concerned that federal courts as rights-enforcing bodies have considerable potential to advance conservative causes. For instance, a growing number of modern progressives suggest that modern First Amendment doctrine has become a tool to advance conservative and deregulatory objectives. 2 269 Many scholars have suggested that the First Amendment has become a modern version of Lochner. 270

At the other end of the political spectrum, some conservatives are similarly wary of aggressive uses of judicial power. They share with the progressives old and new a concern about giving too much power to unelected, unaccountable courts. A judiciary willing to issue sweeping rulings purporting to invalidate democratically enacted laws is claiming a lot of power and proceeding in a nonconservative manner. This line of thought was deeply embedded in modern conservative legal thought. Judicial restraint was one of the watchwords of the early conservative legal movement. It goes back at least to the critics of the Warren Court’s legal liberalism: they argued that among its faults was contempt for the democratic process and willingness to legislate from the bench. 271 The popularity of judicial restraint has waned in the conservative legal movement in recent years. 272 (More are now comfortable with an assertive judiciary when it is enforcing the original meaning of the Constitution.) But there are still conservatives who think that the judicial power is one to constrain and that judicial restraint is a key component. 273 And the charge of judicial activism (often including a reference to Lochner ) is still a standard in the conservative rhetorical arsenal. 274

Advocates of this kind of judicial restraint might favor adjudication by state courts for basically the same reasons that Frankfurter did. First, to the extent that the emphasis is back on economic inequality, concerns about big business having excessive power in American politics, and other issues having to do with political economy, the state courts might again be thought to be the more sympathetic venue. Elected judges might be more likely to take populist positions, for instance. 275

Second, to the extent that the federal constitutional law regime is viewed as excessively strict on at least some metrics or in some areas, the state courts are more likely to be lax in their application. In Frankfurter’s era, it was common for Progressives to see the federal courts as more rigidly protective of federal rights and state courts as less so. The same assumption holds true today. The more state courts are able to adjudicate these issues, the less one might expect that rigid federal constitutional rules will be applied in such a way so as to impede the state enforcement scheme. Modern progressives share with their ideological forebears a concern about the use of the federal courts as countermajoritarian and anti-regulatory institutions. Conservative proponents of restraint are also critical of courts expansively enforcing rights claims at the expense of democratic regulations. The basic conceptual move is the same, even though the kinds of regulations that each side wants to safeguard might be different. 276 To the extent that progressives and conservatives alike assume that state courts are generally more likely to be sympathetic to regulation and less likely to support strict doctrinal enforcement of constitutional doctrines, abstention on federalism grounds should be popular. A more robust federalism vision of abstention allows more space for states to adopt their own distinctive approaches to regulation. Pullman , Burford , and Thibadoux all can rest on this principle. Younger too fits this pattern in the specific context of criminal law. In other words, modern progressives should be interested in abstention for the same reasons that legal liberals distrust abstention.

A few objections to the use of abstention for strategic, political reasons are worth considering briefly. First, it might seem like abstention can’t make a meaningful policy difference for the kinds of issues proponents of restraint would care about because it has cast the federal court as both the “bad guy” and the “good guy” at the same time. The federal court is the bad guy in the sense that it is the entity that is in need of restraining. And the federal court (or at least the federal judge) must also play the role of the good guy, the one exercising self-restraint to abstain from hearing the case. Surely, the skeptic would say, this can’t be realistic. The solution to this apparent conundrum is that federal courts as a whole might be hostile to some policy that one cares about (they could be anti-regulatory, for instance) and yet a particular judge may be sympathetic to regulation. A pro-regulatory judge in the district court could use abstention to keep some issues out of an anti-regulatory court of appeals.

Of course, the appellate court might reverse and get the issue back into federal court. But it won’t always be able to do this. Here, the standard of review matters: a federal court reviewing an abstention decision de novo could easily reclaim a case for the federal courts if the district judge had abstained in a close case. But a court that reviews abstention decisions only for abuse of discretion would have to defer to the district court’s decision to abstain in the close case. The courts of appeals are split on this issue. 277 Some review the issue de novo, providing little space for a federal district court to try to manipulate outcomes about which it disagrees with the court of appeals by applying abstention aggressively. 278 But the potential for manipulation is greater where the standard of review is abuse of discretion, as it is in several circuits. 279

Second, one could think (as Professor Martin H. Redish argues) that abstention doctrines are themselves violations of the principle of judicial restraint. 280 Federal jurisdiction is created by statutes passed by the democratically accountable legislature. 281 So when a federal court declines to exercise this jurisdiction on an abstention rationale, it is actually contravening the will of the legislature. 282 Well-taken though this argument may be, a defender of abstention might still differentiate the kinds of judicial restraint principles involved. An automatic obedience to the jurisdictional statutes might be restraint. But if one has any skepticism that the jurisdictional statutes are perfectly clear, 283 then there’s likely going to be room for second-order judicial restraint principles like abstention. A refusal to take the first stab at an unresolved issue of state law could still be an exercise of restraint.

Third, virtually no one (progressive or conservative) is uniformly hostile to assertive rights protection in federal courts. Modern progressives, for instance, have offered critiques of free speech doctrine and of free exercise doctrine. But to the extent that they support assertive federal court enforcement in other areas (for example, race, gender, or sexual orientation discrimination), they are not likely to offer unqualified support for abstention. If one was to use abstention for maximal political advantage, one would have to decide when and how to apply abstention strategically for some issues and not for others. (This, of course, raises concerns of a different sort—for arguably, the point of neutral principles of law is that they don’t perfectly advance a political agenda. 284 ) If Pullman and other forms of abstention are mandatory, it will be harder to tailor this; if discretionary, it could potentially be better to use as a tool on some varieties of federal claims and not others. These are unsettle^d questions. 285 For the moment, the main point is that Frankfurter’s politically motivated federalism theory of abstention might still have a constituency.

It is sometimes easy to imagine that a familiar concept like federalism was always a part of American constitutional jurisprudence. A closer examination reveals that this is not the case. State-federal relations may have been a familiar part of American jurisprudence, but the issue wasn’t labeled “federalism” in Supreme Court jurisprudence until Justice Felix Frankfurter did so. The introduction of this concept was not happenstance. Frankfurter’s vision of federalism, and of the federal courts’ proper role in it, was informed by his political commitments and his observations of years of political maneuvering around the federal courts. It was because of his observations in the Progressive Era that Frankfurter believed that federal courts had to be restrained precisely in order to facilitate the development of a robust administrative state. Abstention from interfering with state courts was one way that federal courts could internalize this lesson. And unlike some other aspects of Frankfurter’s judicial philosophy, his interest in judicial federalism successfully made the transition from the Progressive Era to the era of legal liberalism.

This history gives present-day scholars of federalism several possible takeaways. First, at the broadest level of generality, it is a reminder that federalism is flexible and susceptible to use for various political ends. The history of federalism doesn’t point in a single political direction. 286 But more troublingly perhaps, it reminds us that federalism is easily manipulated. 287 As this history reveals, federalism was useful precisely because it was so capacious, so malleable, and so easily employed in a manner untethered from the original meaning or text of the Constitution (at least as to the causes that Frankfurter sought to advance through federalism rhetoric). Second, and following from the first point, the flexibility and malleability of federalism as a conceptual tool should make legal thinkers concerned with text and original meaning a bit more skeptical about invocations of federalism without a good textual hook. More specifically, the federalism rationale for abstention should be suspect to an originalist precisely to the extent that Frankfurter really was original—to the extent, in other words, that the federalism rationale was disconnected from constitutional text. Third, even assuming that federalism is a good background principle, there are reasons for the legal liberal to be suspicious of its invocation in the abstention context.

This study of abstention has revealed that federalism’s history is complex and deeply political. What one makes of this history depends very much on one’s methodological priors about constitutional interpretation as well as theoretical and policy commitments about the substantive values that ought to be advanced by constitutional law. Depending on those priors, this history can provide support for the elimination of federalism as a distinct rationale for abstention. Or it might motivate others to think more carefully about how to maximally use abstention doctrine to advance particular political or ideological agendas. History does not tell us which of these options to take. But for anyone who cares about the Constitution, federalism, and the federal courts, the history helps us to see how the abstractions of federalism doctrine have been used in the real-world context of contested politics and ideology.

• 1 The word “federalism” appears only once in the US Reports prior to 1939 and then in an oral argument rather than an opinion of the Supreme Court. See Smith v Turner , 48 US 283, 340 (1849).
• 2 See generally, for example, Ex parte Royall , 117 US 241 (1886) (discussing state-federal relationships in the context of habeas corpus proceedings).
• 3 The term “federalism” was of course not Frankfurter’s creation. It could be found in prior cases and legal literature. See notes 31–38 and accompanying text. The term, however, had very rarely been used in any judicial opinions prior to Frankfurter’s use of the term on the Supreme Court.
• 4 Frankfurter introduced the terminology of federalism in a series of cases involving federal court review of state taxing power. The first of those cases focused on the authority of a federal court to enjoin state court proceedings, so the first use of the term “federalism” in the Supreme Court was a reference to judicial federalism. See Hale v Bimco Trading, Inc , 306 US 375, 377–78 (1939). See also notes 42–47 and accompanying text. Frankfurter referred to federalism in several other tax cases before he used the conceptual apparatus introduced in those cases to innovate in the field of federal courts. See Texas v Florida , 306 US 398, 428 (1939) (Frankfurter dissenting); Graves v New York , 306 US 466, 488 (1939) (Frankfurter concurring); State Tax Commission of Utah v Aldrich , 316 US 174, 183–84 (1942) (Frankfurter concurring). See also O’Malley v Woodrough , 307 US 277, 294–95 n 15 (1939) (Butler dissenting) (quoting Frankfurter’s concurrence in Graves on federalism).
• 5 312 US 496 (1941).
• 6 See id at 498–500.
• 7 See Erwin Chemerinsky, Federal Jurisdiction §§ 12–14 at 829–938 (Wolters Kluwer 7th ed 2016) (describing the abstention doctrines).
• 8 See generally, for example, Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function , 94 Yale L J 71 (1984).
• 9 See generally, for example, David L. Shapiro, Jurisdiction and Discretion , 60 NYU L Rev 543 (1985).
• 10 See, for example, Courthouse News Service v Brown , 908 F3d 1063, 1071 (7th Cir 2018) (stating that “general principles of federalism [ ] underlie all of the abstention doctrines”).
• 11 See Louisiana Power & Light Co v City of Thibodaux , 360 US 25, 27–28 (1959) (applying the abstention doctrine to an eminent domain proceeding that was not a traditional equitable proceeding because eminent domain is a “sovereign prerogative” of the state).
• 12 See Quackenbush v Allstate Insurance Co , 517 US 706, 730 (1996).
• 13 See Richard H. Fallon Jr, John F. Manning, Daniel J. Meltzer, and David L. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 1107–08 (Foundation 7th ed 2015).
• 14 Thibodaux , 360 US at 28.
• 15 See, for example, United States v Lopez , 514 US 549, 575 (1995) (Kennedy concurring) (joining the majority in striking down the Gun-Free School Zones Act of 1990 and noting that “[t]his case requires us to consider our place in the design of the Government and to appreciate the significance of federalism in the whole structure of the Constitution”); United States v Morrison , 529 US 598, 627 (2000) (striking down the Violence Against Women Act as beyond federal power and suggesting that “under our federal system” any remedy for such violence must be provided by state, not federal, authorities). See also Morrison , 529 US at 654 (Souter dissenting) (criticizing the majority as ironically requiring the states to “enjoy the new federalism whether they want it or not”). These cases were sometimes referred to as the “New Federalism.” See, for example, Rosalie Berger Levinson, Will the New Federalism Be the Legacy of the Rehnquist Court? , 40 Valp U L Rev 589, 590 (2006).
• 16 See generally, for example, Erwin Chemerinsky, The Federalism Revolution , 31 NM L Rev 7 (2001). See also Mark Tushnet, A Court Divided: The Rehnquist Court and the Future of Constitutional Law 67–70, 249–78, 338–39 (Norton 2005); Richard H. Fallon Jr, The “Conservative” Paths of the Rehnquist Court’s Federalism Decisions , 69 U Chi L Rev 429, 446–52 (2002) (arguing that legal conservatism is a family of philosophies rather than a single position, and suggesting that federalism may have stronger links with some versions of conservatism and weaker links with others); Linda Greenhouse, 2,691 Decisions (NY Times, July 13, 2008), archived at https://perma.cc/U2TG-2L65; Linda Greenhouse, States Are Given New Legal Shield by Supreme Court (NY Times, June 24, 1999), archived at https://perma.cc/9DHG-UBV8 (discussing how the Court sharply curbed federal power in three then-recent cases).
• 17 See, for example, Heather K. Gerken, Foreword: Federalism All the Way Down , 124 Harv L Rev 4, 44–74 (2010). See also generally Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (Oxford 2018).
• 18 With a more recent wave of scholarship associated with the idea of “Progressive Federalism,” Professor Heather K. Gerken has suggested that the federalism in these cases could be thought of as “Federalism 2.0” while the Progressive Federalism scholarship represents “Federalism 3.0.” See generally Heather K. Gerken, Federalism 3.0 , 105 Cal L Rev 1695 (2017). In another essay, she called it the “ new ‘new federalism.’” Heather K. Gerken, Federalism as the New Nationalism: An Overview , 123 Yale L J 1889, 1889 (2014) (emphasis in original).
• 19 When historians refer to the period known as the “Progressive Era,” they generally mean the era of social reform and activism from the late nineteenth century to the early twentieth century. (The exact contours of the period are endlessly debated among historians.) See generally Heather Cox Richardson, Reconstructing the Gilded Age and Progressive Era , in Christopher McKnight Nichols and Nancy C. Unger, eds, A Companion to the Gilded Age and Progressive Era 7 (Wiley 2017) (reviewing historiographical debates on periodizing the Progressive Era). In more contemporary legal and political discourse, the term is back in vogue. As I suggest below, there is good reason to see links between the modern progressive concerns about the courts and the historical Progressive Era and its priorities. See notes 269–70 and accompanying text. In order to provide some clarity, I capitalize “Progressive” when I use it to refer to the historical era, while I use “progressive” without capitalization to refer to more contemporary political movements.
• 20 See generally, for example, Heather K. Gerken, A New Progressive Federalism , 24 Democracy J 37 (Spring 2012); Heather K. Gerken and Joshua Revesz, Progressive Federalism: A User’s Guide , 44 Democracy J 39 (Spring 2017); Robert A. Schapiro, Not Old or Borrowed: The Truly New Blue Federalism , 3 Harv L & Pol Rev 33 (2009).
• 21 See Elbert Lin, States Suing the Federal Government: Protecting Liberty or Playing Politics? , 52 U Richmond L Rev 633, 641–46 (2018) (describing recent litigation against the Trump administration initiated by state attorneys general); Philip Green, Comment, Keeping Them Honest: How State Attorneys General Use Multistate Litigation to Exert Meaningful Oversight over Administrative Agencies in the Trump Era , 71 Admin L Rev 251, 258–64 (2019) (describing recent litigation against the Trump administration in the context of executive agencies in particular). See also Margaret H. Lemos and Ernest A. Young, State Public-Law Litigation in an Age of Polarization , 97 Tex L Rev 43, 65–85 (2018) (describing the rise of attorney general–led public-law litigation from the late twentieth century into the era of the Trump presidency). Another historical example illustrating the changing political valences is the use of federalism in two very different civil rights contexts. In the mid-twentieth century, southern segregationists tried to use principles of federalism to impede federal civil rights enforcement. But in the 1840s, principles of federalism allowed states to argue for more extensive citizenship protections for Black Americans. See Maeve Glass, Citizens of the State , 85 U Chi L Rev 865, 871, 919–33 (2018).
• 22 See, for example, Gregg Re, Liberal Profs Launch Campaign to Pack Supreme Court After Kavanaugh Confirmation (Fox News, Oct 16, 2018), archived at https://perma.cc/AP2P-UAAZ; Daniel Hemel and Christopher Jon Sprigman, Should Progressives Wage War on the Supreme Court? (Slate, Oct 11, 2018), archived at https://perma.cc/CA6P-B8UB; Dylan Matthews, Court-Packing, Democrats’ Nuclear Option for the Supreme Court, Explained (Vox, Oct 5, 2018), archived at https://perma.cc/Y9HG-B3S9; Ian Ayres and John Fabian Witt, Democrats Need a Plan B for the Supreme Court. Here’s One Option. (Wash Post, July 27, 2018), online at https://www.washingtonpost.com/opinions/democrats-need-a-plan-b-for-the-supreme-court-heres-one-option/2018/07/27/4c77fd4e-91a6-11e8-b769-e3fff17f0689_story.html (visited May 21, 2020) (Perma archive unavailable); Michael Hiltzik, How a New Court-Packing Scheme Could Save the Supreme Court from Right-Wing Domination (LA Times, July 2, 2018), archived at https://perma.cc/4UVZ-U9AC.
• 23 For a discussion of the racial politics of the Pullman decision, see text accompanying notes 249–54.
• 24 For an example from the Rehnquist court, see Quackenbush , 517 US at 716–31. For an example from the Roberts court, see Sprint Communications, Inc v Jacobs , 571 US 69, 77 (2013).
• 25 See, for example, McCulloch v Maryland , 17 US (4 Wheat) 316, 326–27 (1819).
• 26 See, for example, Gibbons v Ogden , 22 US (9 Wheat) 1, 194–222 (1824) (addressing the scope of congressional power under the Commerce Clause).
• 27 See, for example, Andrew C. McLaughlin, The Background of American Federalism , 12 Am Polit Sci Rev 215, 235–37 (1918); John Bassett Moore, Four Phases of American Development: Federalism—Democracy—Imperialism—Expansion 9–46 (Johns Hopkins 1912).
• 28 See generally, for example, Herman G. James, Federalism in Latin America , 55 Bull Pan Am Union 229 (1922); Charles Grove Haines, Judicial Interpretation of the Constitution Act of the Commonwealth of Australia , 30 Harv L Rev 595 (1917).
• 29 See, for example, Judson Harmon on Jefferson’s Ideas: Urges Democrats to Return to Old Principles , NY Times 5 (Mar 5, 1901); Congressman Williams Criticises Democrats , NY Times 5 (Oct 7, 1902).
• 30 The Federalists: Their System of Government the Subject of the Second Volume of “The American Nation.” , NY Times BR62 (Feb 3, 1906).
• 31 I ran searches in the databases Westlaw and Lexis Advance for all state and federal cases decided prior to 1939. I compared the results, which were almost but not perfectly identical. Lexis also returned Ex parte Royall , 117 US 241 (1886), but I have omitted it from the count because the term “federalism” appears only in a notation added by Lexis.
• 32 See Smith v Turner , 48 US 283, 340 (1849).
• 33 See Commonwealth v Blanding , 20 Mass 304, 308 (1825) (reprinting a reference from oral argument to an article entitled “Monarchy of Federalism”); State v Hunt , 20 SCL (2 Hill) 1, 43–44 (SC App 1834) (reprinting the characterization at oral argument of the election of Thomas Jefferson as a “contest [ ] between federalism, or national rights and liberal construction on the one side, and democracy, or State rights and strict construction on the other”).
• 34 In one of the cases, the term seemed to be used as one of opprobrium. See Beardsley v Maynard , 4 Wend 336, 346 (NY Sup 1830) (reprinting one of the allegedly libelous newspaper publications that used the term “federalism” in discussing state politics). In the other case, the term was used positively. See United States v Haswell , 26 F Cases 218, 218 (CC D Vt 1800).
• 35 See Bosworth v Harp , 157 SW 1084, 1085 (Ky App 1913) (citing Henry Adams’s book, New England Federalism , in a discussion of secession); Committee for Industrial Organization v Hague , 25 F Supp 127, 137 (D NJ 1938) (suggesting that the constitutional protection of free speech is a product of “that fear of the central government which is both the reason for and the handicap of Federations” and citing several histories of other federated states, including Failure of Federalism in Australia ).
• 36 United States v Flegenheimer , 14 F Supp 584, 585–86 (D NJ 1935) (arguing for adoption of a uniform interstate law and citing Louis Le Fur’s Etat Federal et Confederation d’Etats for the general proposition “that the field for uniformity widens with civilization”).
• 37 See Winkler v Scudder , 1 Ga 108, 128 (1846) (using the term “federalism” to describe the nationalization of England’s commerce: “She was then throwing off the restraints of Federalism, and multiplying the industrial pursuits of her people”).
• 39 On Frankfurter’s appointment, see Noah Feldman, Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices 152–63 (Twelve 2010).
• 40 Though it might—terminology used to “frame” a concept can shape observers’ perceptions of that concept. See Donald J. Kochan, The [Takings]  Keepings Clause: An Analysis of Framing Effects from Labeling Constitutional Rights , 45 Fla St U L Rev 1021, 1081–93 (2018).
• 41 On the importance of concepts and terminology in intellectual history, see generally Peter de Bolla, The Architecture of Concepts: The Historical Formation of Human Rights (Fordham 2013).
• 42 306 US 375 (1939). See also Michael G. Collins, Whose Federalism? , 9 Const Commen 75, 75 (1992).
• 43 He was nominated by President Franklin D. Roosevelt on January 5, 1939, confirmed by the Senate on January 17, 1939, and commissioned on January 20, 1939. Federal Judicial Center, Felix Frankfurter, Biographical Directory of Federal Judges , archived at https://perma.cc/GZG5-QPFF.
• 44 Hale , 306 US at 376–77.
• 45 Id at 377.
• 46 The Anti-Injunction Act effective at the time was the Act of Mar. 3, 1911, ch 231, § 265, 36 Stat 1162 (1911).
• 47 Hale , 306 US at 378.
• 48 Texas v Florida , 306 US 398, 428 (1939) (Frankfurter dissenting) (“The authority which the Constitution has committed to this Court over ‘Controversies between two or more States,’ serves important ends in the working of our federalism.”).
• 49 Graves v New York , 306 US 466, 490 (1939) (Frankfurter concurring).
• 50 Id at 487 (majority).
• 51 Id at 488 (Frankfurter concurring).
• 52 Id at 490 (citation omitted).
• 53 Graves , 306 US at 490 (Frankfurter concurring).
• 54 308 US 79 (1939).
• 55 Id at 82.
• 56 Id at 83.
• 57 Id at 82.
• 58 Palmer , 308 US at 82.
• 59 Id at 83–84.
• 60 Id at 84.
• 62 Palmer , 308 US at 87–89.
• 63 Id at 84.
• 64 306 US 466 (1939).
• 65 See, for example, Jonathan Elliot, ed, The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787 155 (Washington 2d ed 1836) (quoting a speech by Patrick Henry). See also Antonin Scalia, The Two Faces of Federalism , 6 Harv J L & Pub Pol 19, 19 (1982) (noting that “[w]hen Alexander Hamilton exalted [federalism’s] virtues, he meant it as a criticism of colonial disunity”).
• 66 See, for example, Judiciary Rapped by a Chief Justice , NY Times 11 (Nov 24, 1907) (quoting the Dean of Yale Law School’s statement that “[w]e are threatened with a revival of Federalism and with a Federalism which is more extreme and radical than the leaders of the old Federal Party ever countenanced or would have tolerated” due to the rise of centralization).
• 67 See George A. Martinez, The Anti-Injunction Act: Fending Off the New Attack on the Relitigation Exception , 72 Neb L Rev 643, 645 (1993) (noting that “for almost two hundred years, this country has had some form of Anti-Injunction Act”).
• 68 314 US 118 (1941).
• 69 See id at 126. See also James E. Pfander, Principles of Federal Jurisdiction § 9.3.3 at 283 (West 2d ed 2011).
• 70 Toucey , 314 US at 141.
• 72 Id at 130–32. For an alternative approach to the Anti-Injunction Act, see generally James E. Pfander and Nassim Nazemi, The Anti-Injunction Act and the Problem of Federal-State Jurisdictional Overlap , 92 Tex L Rev 1 (2013).
• 73 Toucey , 314 US at 131.
• 74 Id at 141.
• 75 Id at 152–53 (Reed dissenting).
• 76 See Mary Brigid McManamon, Felix Frankfurter: The Architect of “Our Federalism” , 27 Ga L Rev 697, 709 (1993).
• 77 Revision of Title 28, United States Code, HR Rep No 308, 80th Cong, 1st Sess, A182 (1947).
• 79 Pfander, Principles of Federal Jurisdiction § 9.3.3 at 283 (cited in note 69). See also Chick Kam Choo v Exxon Corp , 486 US 140, 146–48 (1988) (discussing the application of the relitigation exception); Atlantic Coast Line Railroad Co v Brotherhood of Locomotive Engineers , 398 US 281, 287 (1970). For a discussion of the evolution of the courts of appeals’ treatment of the relitigation exception after 1948, see Andrea R. Lucas, Note, Balancing Comity with the Protection of Preclusion: The Scope of the Relitigation Exception to the Anti-Injunction Act , 97 Va L Rev 1475, 1497–1501 (2011) (describing the cases coming after the revisions but before the Supreme Court had addressed the scope of the exception post- Toucey ); id at 1483–90 (describing the current circuit split since Chick Kam Choo ). For criticism of Justice Reed’s dissent (and of Congress’s action in restoring the pre- Toucey status quo) as inconsistent with “traditional notions of judicial federalism,” see Martin H. Redish, The Anti-Injunction Statute Reconsidered , 44 U Chi L Rev 717, 722–26 (1977).
• 80 Pullman , 312 US at 498.
• 81 Id at 499–500.
• 82 Id at 500.
• 83 Id at 501, quoting Cavanaugh v Looney , 248 US 453, 457 (1919), and Di Giovanni v Camden Insurance Association , 296 US 64, 73 (1935).
• 84 Pullman , 312 US at 501.
• 85 360 US 25 (1959).
• 86 Id at 28.
• 89 Thibodaux , 360 US at 25.
• 90 Id at 30–31.
• 91 Id at 28.
• 92 See generally Ann Woolhandler, Between the Acts: Federal Court Abstention in the 1940s and ’50s , 59 NY L Sch L Rev 211 (2015).
• 93 401 US 37 (1971).
• 94 Id at 41, 44. The extent to which the principle of abstention is mandatory or discretionary is debatable, in light of the Court’s restatement of the Younger rule in Sprint Communications, Inc v Jacobs , 571 US 69, 72 (2013) (“When there is a parallel, pending state criminal proceeding, federal courts must refrain from enjoining the state prosecution.”).
• 95 See McManamon, 27 Ga L Rev at 733–37 (cited in note 76). An additional recent article, much more limited in scope, provided a very specific appreciation of Frankfurter’s coedited casebook on federal courts. See generally Evan Tsen Lee, Federal Jurisdiction According to Professor Frankfurter , 53 SLU L J 779 (2009). Though that article lacks a broader historical frame, it accords with the points I make in this Article about Frankfurter’s commitment to federalism being quite developed before he joined the Court.
• 96 Scholars already know that Frankfurter’s experience in this era shaped his later thoughts on judicial restraint, civil liberties, and civil rights. See, for example, Melvin I. Urofsky, Felix Frankfurter: Judicial Restraint and Individual Liberties 1–33 (Twayne 1991); Michael E. Parrish, Felix Frankfurter and His Times: The Reform Years 39–219 (Free Press 1982). The impact of Frankfurter’s early political observations on his later thinking about the federal courts is, however, lacking.
• 97 Edward A. Purcell Jr is the only historian to note this link, which he did in a review essay that started with Frankfurter and then spent most of its analysis on recent histories of the federal judiciary. See Edward A. Purcell Jr, Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts , 24 L & Soc Inquiry 679, 681–88 (1999).
• 98 See generally, for example, Ken I. Kersch, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law (Cambridge 2004). See also David E. Bernstein, Rehabilitating Lochner : Defending Individual Rights Against Progressive Reform 40–55 (Chicago 2011).
• 99 198 US 45 (1905).
• 100 Id at 53, 64.
• 101 Id at 64–65.
• 102 Id at 74–76 (Holmes dissenting).
• 103 See Luke P. Norris, Labor and the Origins of Civil Procedure , 92 NYU L Rev 462, 482–90 (2017).
• 104 See William E. Forbath, Law and the Shaping of the American Labor Movement 59–66 (Harvard 1991).
• 105 Jon R. Kerian, Injunctions in Labor Disputes: The History of the Norris-LaGuardia Act , 37 ND L Rev 49, 49 (1961).
• 106 In re Debs , 158 US 564, 599–600 (1895).
• 107 Kerian, 37 ND L Rev at 49–50 (cited in note 105).
• 108 Id at 51.
• 109 Felix Frankfurter and Nathan Greene, Labor Injunctions and Federal Legislation , 42 Harv L Rev 766, 767 (1929).
• 110 Forbath, Law and the Shaping of the American Labor Movement at 9 (cited in note 104).
• 111 See Norris, 92 NYU L Rev at 492–94 (cited in note 103); Forbath, Law and the Shaping of the American Labor Movement at 128–66 (cited in note 104).
• 112 Forbath, Law and the Shaping of the American Labor Movement at 128–66 (cited in note 103).
• 113 38 Stat 730 (1914).
• 114 See Stanley I. Kutler, Labor, the Clayton Act, and the Supreme Court , 3 Labor Hist 19, 19–20 (1962); Norris, 92 NYU L Rev at 490–92 (cited in note 111).
• 115 See Duplex Printing Press Co v Deering , 254 US 443, 469 (1921).
• 116 See Edward A. Purcell Jr, Brandeis and the Progressive Constitution: Erie , the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America 85–91 (Yale 2000).
• 117 47 Stat 70 (1932), codified at 29 USC § 101 et seq.
• 118 See Purcell, Brandeis and the Progressive Constitution at 88 (cited in note 116); Norris, 92 NYU L Rev at 499–508 (cited in note 103). For Frankfurter’s extensive defense of the Norris-LaGuardia Act, see Felix Frankfurter and Nathan Greene, The Labor Injunction 199–228 (MacMillan 1930).
• 119 49 Stat 449 (1935), codified as amended at 29 USC § 151 et seq.
• 120 See Forbath, Law and the Shaping of the American Labor Movement at 164–65 (cited in note 112); Lawrence M. Friedman, American Law in the Twentieth Century 167–69 (Yale 2002). That protection would be significantly diminished just over a decade later by the Taft-Hartley Act, 61 Stat 136, codified as amended in various sections of Title 29 (1947). One historian described the Act’s effect as “ghettoizing the . . . labor movement.” Nelson Lichtenstein, State of the Union: A Century of American Labor 117 (Princeton 2002).
• 121 Forbath, Law and the Shaping of the American Labor Movement 177–87 (cited in note 104).
• 122 Lindley D. Clark, Labor Laws That Have Been Declared Unconstitutional , 321 Bull US Bureau Labor Statistics 1, 2 (Nov 1922).
• 124 Lochner itself clarified the law: Supreme Court review of federal constitutional questions decided by state courts was at the time asymmetric, so the Supreme Court had not taken appeals from prior state cases that had affirmed the federal right (by striking down regulatory legislation). See Felix Frankfurter and James M. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 211 (MacMillan 1928).
• 125 See Purcell, Brandeis and the Progressive Constitution 11–38 (cited in note 116).
• 126 See generally Melvin I. Urofsky, State Courts and Protective Legislation During the Progressive Era: A Reevaluation , 72 J Am Hist 63 (1985).
• 127 Id at 72–77, 88. In a different context, Frankfurter noted the difficulty of effecting any change in state courts in terms of general policy. See Felix Frankfurter and James M. Landis, Power of Congress over Procedure in Criminal Contempts in “Inferior” Federal Courts—A Study in Separation of Powers , 37 Harv L Rev 1010, 1010 n 3 (1924) (“Differences due to differences in constitutional provisions, judicial history and State legislation make resort to State cases treacherous and unscientific.”).
• 128 Louis B. Boudin, Organized Labor and the Clayton Act: Part I , 29 Va L Rev 272, 273–74 (1942).
• 129 Frankfurter and Greene, Labor Injunctions and Federal Legislation , 42 Harv L Rev at 766 (cited in note 109).
• 130 27 Stat 379, codified as amended in various sections of Title 49.
• 131 26 Stat 209, codified as amended at 15 USC § 1 et seq.
• 132 See Felix Frankfurter, The Constitutional Opinions of Justice Holmes , 29 Harv L Rev 683, 684 (1916).
• 133 For information on state court elections, see Jed Handelsman Shugerman, The People’s Courts: Pursuing Judicial Independence in America 159–76 (Harvard 2012).
• 134 See John Dinan, Framing a “People’s Government”: State Constitution-Making in the Progressive Era , 30 Rutgers L J 933, 951 (1999).
• 135 See Thomas Goebel, A Government by the People: Direct Democracy in America, 1890–1940 61–65 (UNC 2002).
• 136 See John D. Leshy, The Making of the Arizona Constitution , 20 Ariz St L J 1, 44–45 (1988).
• 137 See Dinan, 30 Rutgers L J at 953–54 (cited in note 134).
• 138 For a discussion of this proposal and its critics, see generally Stephen Stagner, The Recall of Judicial Decisions and the Due Process Debate , 24 Am J Legal Hist 257 (1980). See also Goebel, A Government by the People 61–65, 112–13 (cited in note 135).
• 139 Theodore Roosevelt, A Charter for Democracy (Teaching American History, Feb 21, 1912), archived at https://perma.cc/4Upk-XSGL.
• 140 Theodore Roosevelt, An Address at Madison Square Garden, 30 October 1912 , in Lewis L. Gould, ed, Bull Moose on the Stump: The 1912 Campaign Speeches of Theodore Roosevelt 189 (Kansas 2008).
• 141 See Parrish, Felix Frankfurter and His Times at 23–26 (cited in note 96).
• 142 See id at 27–29. For more on Stimson, see generally David F. Schmitz, Henry L. Stimson: The First Wise Man (Rowman 2000).
• 143 See Parrish, Felix Frankfurter and His Times at 29–32 (cited in note 96). See generally Royal C. Gilkey, Felix Frankfurter’s Career as a Law Officer under Henry L. Stimson , 33 UMKC L Rev 61 (1965) (focusing on his cases against larger entities).
• 144 Parrish, Felix Frankfurter and His Times at 37–38 (cited in note 96).
• 145 See id at 54.
• 146 See Stagner, 24 Am J Legal Hist at 257 (cited in note 138).
• 147 261 US 525 (1923).
• 148 Id at 562. For information on Frankfurter’s representation, see Liva Baker, Felix Frankfurter 112–15 (New York 1969); Joan G. Zimmerman, The Jurisprudence of Equality: The Women’s Minimum Wage, the First Equal Rights Amendment, and Adkins v. Children’s Hospital , 1905–1923 , 78 J Am Hist 188, 209–22 (1991).
• 149 Frankfurter, 29 Harv L Rev at 684 (cited in note 132).
• 151 See Brad Snyder, The House of Truth: A Washington Political Salon and the Foundations of American Liberalism 341–56 (Oxford 2017).
• 152 Frankfurter, 29 Harv L Rev at 691–92 (citation omitted) (cited in note 132). Frankfurter would reuse this quote again. See Felix Frankfurter, Mr. Justice Holmes and the Constitution: A Review of His Twenty-Five Years on the Supreme Court , 41 Harv L Rev 121, 132 (1927); Felix Frankfurter, The United States Supreme Court Molding the Constitution , 32 Current Hist 235, 238 (1930).
• 153 See Frankfurter, 29 Harv L Rev at 691 (cited in note 132) (“Against this subtle danger of the unconscious identification of personal views with constitutional sanction [Holmes] has battled incessantly. Enough is said if it is noted that the tide has turned. The turning point is the dissent in the Lochner case.”).
• 154 See Snyder, The House of Truth at 343–46 (cited in note 151); G. Edward White, The Rise and Fall of Justice Holmes , 39 U Chi L Rev 51, 59 (1971).
• 155 Snyder, The House of Truth at 346 (cited in note 151) (quotation marks omitted), quoting Felix Frankfurter, The Political Function of the Supreme Court , New Republic 238 (Jan 25, 1922), quoting Truax v Corrigan , 257 US 312, 344 (1921) (Holmes dissenting).
• 156 William Howard Taft, Possible and Needed Reforms in Administration of Justice in Federal Courts , 8 ABA J 601, 602–03 (1922).
• 157 Felix Frankfurter, The Business of the Supreme Court of the United States. A Study in the Federal Judicial System, III. From the Circuit Courts of Appeals Act to the Judicial Code , 39 Harv L Rev 325, 358 (1926). For the parallel passage in Frankfurter’s coauthored book on this same subject, see Frankfurter and Landis, The Business of the Supreme Court at 136 (cited in note 124).
• 158 Felix Frankfurter and James M. Landis, The Business of the Supreme Court of the United States—A Study in the Federal Judicial System: VIII. The Future of Supreme Court Litigation , 40 Harv L Rev 1110, 1111 (1927). For the parallel passage in Frankfurter’s coauthored book on this same subject, see Frankfurter and Landis, The Business of the Supreme Court at 300 (cited in note 124).
• 159 Frankfurter and Landis, 40 Harv L Rev at 1111 (cited in note 158). For the parallel passage in Frankfurter’s coauthored book on this same subject, see Frankfurter and Landis, The Business of the Supreme Court at 300 (cited in note 124).
• 160 See Felix Frankfurter, Distribution of Judicial Power Between United States and State Courts , 13 Cornell L Q 499, 506 (1928).
• 161 For information on the politics of the proposals, see Purcell, Brandeis and the Progressive Constitution at 77–91 (cited in note 116).
• 162 See Noble State Bank v Haskell , 219 US 104, 111 (1911) (“[I]t would seem that there may be other cases beside the every day one of taxation, in which the share of each party in the benefit of a scheme of mutual protection is sufficient compensation for the correlative burden that it is compelled to assume.”).
• 163 Ives v South Buffalo Railway Co , 94 NE 431, 448 (NY 1911).
• 164 See John Fabian Witt, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law 174–76 (Harvard 2004).
• 165 See State v Clausen , 117 P 1101, 1119–20 (Wash 1911).
• 166 Frankfurter and Landis, The Business of the Supreme Court at 195 (cited in note 124).
• 167 See generally Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges’ Bill , 100 Colum L Rev 1643 (2000).
• 168 Frankfurter and Landis, The Business of the Supreme Court at 213 (cited in note 124). This expansion of certiorari jurisdiction would be followed by yet another expansion of certiorari in 1925, which created the modern Supreme Court discretionary docket. See J. Warren Madden, One Supreme Court and the Writ of Certiorari , 15 Hastings L J 153, 156–57 (1963).
• 169 For a conservative perspective, see generally Taft, Possible and Needed Reforms , 8 ABA J 601 (cited in note 156).
• 170 Frankfurter’s concern about managing the docket continued in his career, affecting, for instance, his views on three-judge district courts with direct appeal to the Supreme Court. See David P. Currie, The Three-Judge District Court in Constitutional Litigation , 32 U Chi L Rev 1, 58, 74 n 365 (1964); Michael E. Solimine, Congress, Ex parte Young , and the Fate of the Three-Judge District Court , 70 U Pitt L Rev 101, 135 & n 165 (2008).
• 171 46 Cong Rec 313 (1911).
• 172 Frankfurter, 39 Harv L Rev at 365 (cited in note 157). For the parallel passage in Frankfurter’s coauthored book on this same subject, see Frankfurter and Landis, The Business of the Supreme Court at 143 (cited in note 124).
• 173 Frankfurter, 39 Harv L Rev at 365 n 171 (cited in note 157) (alterations in original) (quotation marks omitted), quoting 46 Cong Rec 315 (1911) (statement of Rep Cullop).
• 174 Frankfurter, 39 Harv L Rev at 365 (cited in note 157).
• 175 46 Cong Rec 314 (1911).
• 176 Frankfurter, 13 Cornell L Q at 515 (cited in note 160).
• 179 See Pullman , 312 US at 498.
• 180 46 Cong Rec 315 (1911).
• 181 See Urofsky, Felix Frankfurter at 45–50 (cited in note 96). See also generally Melvin I. Urofsky, Conflict Among the Brethren: Felix Frankfurter, William O. Douglas and the Clash of Personalities and Philosophies on the United States Supreme Court , 1988 Duke L J 71.
• 182 See generally Jane Perry Clark, The Rise of a New Federalism: Federal-State Cooperation in the United States (Columbia 1938).
• 183 See Aziz Z. Huq, When Was Judicial Self-Restraint? , 100 Cal L Rev 579, 597–99 (2012); Richard A. Posner, The Rise and Fall of Judicial Self-Restraint , 100 Cal L Rev 519, 546 (2012); Thomas M. Keck, The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism 17–67 (Chicago 2004); Laura Kalman, The Strange Career of Legal Liberalism 20, 30–31 (Yale 1996).
• 184 Progressive politics had their heyday in the first decades of the twentieth century. For the purposes of this Article, Progressives were generally united in their interest in restraining the courts so as to facilitate social reform legislation. In the New Deal period, many of these themes continued, but historians have widely noted a transformation in the political landscape as the various strands of Progressivism were refashioned into a liberalism that emphasized federal legislative initiative and—more importantly for the purposes of this Article—an activist judiciary that protected individual rights. The transition took time, and historians continue to debate the exact chronology of when the various components of the new liberal ideology came into being. For a discussion of the transition from Progressivism to liberalism, see generally Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War (New York 1995); Alan Brinkley, Liberalism and Its Discontents (Harvard 1998) (focusing on the development of liberalism in American history). For a history of this transition in the courts, see generally Purcell, Brandeis and the Progressive Constitution (cited in note 116).
• 185 The following must take the form of an informed historian’s hypothesis rather than a more definitive conclusion; it is possible that further research in Frankfurter’s personal papers might provide the additional evidence to move this from hypothesis to historical account.
• 186 Frankfurter and Landis, 37 Harv L Rev at 1018 (cited in note 127).
• 187 For a statement of Frankfurter’s dedication to federalism told in terms of traditionalism and political theory commitments, without referencing Frankfurter’s politics, see Helen Shirley Thomas, Felix Frankfurter: Scholar on the Bench 315–19 (Johns Hopkins 1960).
• 188 See Urofsky, Felix Frankfurter at 44 (cited in note 96).
• 189 See G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges 280 (Oxford 3d ed 2007); Urofsky, Felix Frankfurter at 45–63 (cited in note 96); Feldman, Scorpions at 233–34 (cited in note 39).
• 190 For a discussion of Frankfurter’s failure to transition to legal liberalism, see Kalman, The Strange Career of Legal Liberalism at 26–31 (cited in note 183).
• 191 See White, The American Judicial Tradition at 278–84 (cited in note 189); Howard Ball, Hugo L. Black: Cold Steel Warrior 139–45 (Oxford 1996); James F. Simon, The Antagonists: Hugo Black, Felix Frankfurter and Civil Liberties in Modern America 130–56 (Simon & Schuster 1989); Mark Silverstein, Constitutional Faiths: Felix Frankfurter, Hugo Black, and the Process of Judicial Decision Making 127–219 (Cornell 1984).
• 192 Younger , 401 US at 44.
• 193 For a discussion of Frankfurter’s use of the term, see Part I.A.
• 194 319 US 315 (1943).
• 195 Id at 332–34.
• 196 Id, quoting Pullman , 312 US at 501.
• 197 304 US 64 (1938).
• 198 Id at 78.
• 199 See Purcell, Brandeis and the Progressive Constitution at 93–191 (cited in note 116).
• 200 Burford , 319 US at 344–46 (Frankfurter dissenting).
• 201 Younger , 401 US at 43.
• 202 Id. See also Samuels v Mackell , 401 US 66, 68–69 (1971).
• 203 Younger , 401 US at 44.
• 205 Juidice v Vail , 430 US 327, 335 (1977).
• 206 Huffman v Pursue, Ltd , 420 US 592, 604 (1975) (“The component of Younger which rests upon the threat to our federal system is thus applicable to a civil proceeding such as this quite as much as it is to a criminal proceeding.”).
• 207 See Brinkley, Liberalism and Its Discontents at 17–78 (cited in note 184); Brinkley, The End of Reform at 3–48 (cited in note 184).
• 208 See Jessica Bulman-Pozen, Our Regionalism , 166 U Pa L Rev 377, 394–414 (2018).
• 209 See generally Calvin Massey, Federalism and the Rehnquist Court , 53 Hastings L J 431 (2002).
• 210 See Laura Weinrib, The Taming of Free Speech: America’s Civil Liberties Compromise 244–57 (Harvard 2016).
• 211 Parrish, Felix Frankfurter and His Times at 272 (cited in note 96).
• 212 Bulman-Pozen, 166 U Pa L Rev at 397 (cited in note 208), quoting Robert L. Dorman, Revolt of the Provinces: The Regionalist Movement in America, 1920–1945 129 (UNC 2003).
• 213 Richard A. Colignon, Power Plays: Critical Events in the Institutionalization of the Tennessee Valley Authority 121 (SUNY 1997).
• 214 See David Ekbladh, “Mr. TVA”: Grass-Roots Development, David Lilienthal, and the Rise and Fall of the Tennessee Valley Authority as a Symbol for U.S. Overseas Development, 1933–1973 , 26 Diplomatic Hist 335, 344–45 (2002).
• 215 See generally Daniel Immerwahr, Thinking Small: The United States and the Lure of Community Development (Harvard 2015).
• 216 See Bulman-Pozen, 166 U Pa L Rev at 394–401 (cited in note 208).
• 217 See generally Clark, The Rise of a New Federalism (cited in note 182).
• 218 See generally David Riesman, Book Review, The Rise of a New Federalism , 52 Harv L Rev 175 (1938).
• 219 Id at 176.
• 220 Id (citation omitted). For similar points, see generally Frank R. Strong, Cooperative Federalism , 23 Iowa L Rev 459 (1938).
• 221 Riesman, 52 Harv L Rev at 176 (cited in note 218).
• 222 See Daniel Horowitz, David Riesman: From Law to Social Criticism , 58 Buff L Rev 1005, 1005 (2010).
• 223 See Palmer , 308 US at 84 (noting that “absorption of state authority is a delicate exercise of legislative policy in achieving a wise accommodation between the needs of central control and the lively maintenance of local institutions” and citing generally to Clark’s The Rise of a New Federalism ).
• 224 This vision of legal liberalism did not emerge fully formed in the 1930s but it would develop over the ensuing years. Some of its central ideas have been discerned in the famous footnote four of United States v Carolene Products Co , 304 US 144, 152–53 n 4 (1938). For a historical account of how this liberal vision of a rights-protecting judiciary (separate from, and a check on, political and legislative processes) emerged, see Weinrib, The Taming of Free Speech at 244–57, 309 (cited in note 210).
• 225 This was an idea that would later become central to liberal political theory. See generally, for example, John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard 1980) (highlighting his theory that the judiciary exists to protect participation in the political process).
• 226 This goes naturally with the assumption of parity between federal and state courts: the assumption “that state courts are as good as federal courts and that the dignity of the states requires federal respect for their judgments.” Richard H. Fallon Jr, The Ideologies of Federal Courts Law , 74 Va L Rev 1141, 1174 (1988) (citation omitted). For a discussion of parity, see note 259 and accompanying text.
• 227 See generally Kalman, The Strange Career of Legal Liberalism (cited in note 183).
• 228 A full history would of course also analyze the relationship of legal process theory to legal liberalism, but that is beyond the scope of this Article.
• 229 As Justice Holmes said, historical research is the first step in informed legal analysis. See Oliver Wendell Holmes Jr, The Path of the Law , 10 Harv L Rev 457, 469 (1897) (“When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength.”).
• 230 See US Const Amend X. For the classic statement of the enumerated powers theory, see Federalist 45 (Madison), in The Federalist , 308, 313 (Wesleyan 1961) (Jacob E. Cooke, ed) (“The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.”).
• 231 See, for example, Charles Cooper, Reserved Powers of the States , in David F. Forte and Matthew Spalding, eds, The Heritage Guide to the Constitution 479, 479–83 (Heritage 2d ed 2014).
• 232 Professor Calvin R. Massey has argued that the abstention cases must implicitly rest on the Constitution, possibly under a Tenth Amendment theory. See Calvin R. Massey, Abstention and the Constitutional Limits of the Judicial Power of the United States , 1991 BYU L Rev 811, 821 (1991). If this is the case, it only sharpens the current point that the constitutional analysis is lacking.
• 233 See, for example, Gonzales v Raich , 545 US 1, 9 (2005) (holding that the Controlled Substances Act is within the Commerce Clause power and thus trumps permissive state marijuana law); United States v Lopez , 514 US 549, 567–68 (1995) (finding that the Gun-Free School Zones Act of 1990 exceeded the scope of Congress’s Commerce Clause power). See also Bond v United States , 564 US 211, 222 (2011) (“By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.”).
• 234 See, for example, Lawrence B. Solum, Originalist Methodology , 84 U Chi L Rev 269, 295 (2017); Lawrence B. Solum, Originalism and the Unwritten Constitution , 2013 U Ill L Rev 1935, 1978–80; Caleb Nelson, Originalism and Interpretative Conventions , 70 U Chi L Rev 519, 525–29, 537–39, 548–50 (2003); John Harrison, Forms of Originalism and the Study of History , 26 Harv J L & Pub Pol 83, 87–88, 91–92 (2003). See generally William Baude, Constitutional Liquidation , 71 Stan L Rev 1 (2019); Jonathan Gienapp, Historicism and Holism: Failures of Originalist Translation , 84 Fordham L Rev 935 (2015); Curtis A. Bradley and Neil S. Siegel, After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession , 2014 S Ct Rev 1. See also NLRB v Noel Canning , 573 US 513, 572 (2014) (Scalia concurring in the judgment) (“[W]here a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision.”).
• 235 See, for example, Keith E. Whittington, Originalism: A Critical Introduction , 82 Fordham L Rev 375, 378–82 (2013); Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 92–93 (Princeton 2004).
• 236 See, for example, Jennifer L. Mascott, Who Are “Officers of the United States”? , 70 Stan L Rev 443, 465–507 (2018) (using an originalist method to analyze the meaning of a constitutional phrase). See also generally Jack M. Balkin, The New Originalism and the Uses of History , 82 Fordham L Rev 641 (2013) (analyzing the various uses of history in originalist argumentation).
• 237 For an account of the relationship between textualism and originalism, see generally, for example, Randy E. Barnett, An Originalism for Nonoriginalists , 45 Loyola L Rev 611 (1999).
• 238 For a defense of original intent, see generally Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses , 82 Nw U L Rev 226 (1988). For a discussion of the eclipse of original intent by original public meaning originalism, see generally Lawrence B. Solum, What is Originalism? The Evolution of Contemporary Originalist Theory (2011), online at https://ssrn.com/abstract=1825543 (visited July 15, 2020) (Perma archive unavailable). For an argument that original public meaning and original intent might be compatible, see generally John O. McGinnis and Michael B. Rappaport, Unifying Original Intent and Original Public Meaning , 113 Nw U L Rev 1371 (2019).
• 239 See generally Shapiro, 60 NYU L Rev (cited in note 9) (documenting an expansive equity tradition of jurisdiction). See also, for example, New Orleans Public Service, Inc v Council of the City of New Orleans , 491 US 350, 359 (1989) (noting  that “federal courts’ discretion in determining whether to grant certain types of relief [is] a discretion that was part of the common-law background against which the statutes conferring jurisdiction were enacted”).
• 240 Professor David Shapiro’s influential study defending the federal courts’ use of discretion in exercising jurisdiction invokes both equitable doctrines and common law doctrines to defend abstention. See Shapiro, 60 NYU L Rev at 545–74 (cited in note 9). For an explanation of the influence of his article, see generally Daniel J. Meltzer, Jurisdiction and Discretion Revisited , 79 Notre Dame L Rev 1891 (2004). But the common law exercises of discretion come in just two varieties, neither of which is especially helpful for federalism-based abstention. First, there were prerogative writs, like certiorari and mandamus, which the common law courts could, but did not have to, grant. See Shapiro, 60 NYU L Rev at 572 (cited in note 9). Second, there were forum non conveniens cases in which common law courts declined to hear a case when there was another more convenient venue for proceeding. See id at 573. (For example, historically in the United Kingdom, English courts deferred to Scottish proceedings or vice versa.) But the prerogative writs live on and don’t really help to justify the creation of a new form of abstention. And forum non conveniens is arguably also unhelpful because it does not grapple with the Supremacy Clause issue; the relations between Scottish and English courts lacked any principle that one had supremacy over the other. For the history of the Act of Union that provided for Parliamentary sovereignty over the Scottish courts, see James E. Pfander and Daniel D. Birk, Article III and the Scottish Judiciary , 124 Harv L Rev 1613, 1677 (2011). But this is quite different from a general principle of federal law supremacy over state law that exists under the Supremacy Clause in the United States. See US Const Art VI, cl 2.
• 241 See, for example, Joseph Story, 1 Commentaries on Equity Jurisprudence § 64 at 53–54 (Little, Brown 12th ed 1877) (noting that the maxim was true in two senses: first, “that equity adopts and follows the rules of law in all cases, to which those rules may . . . be applicable” and second, “that equity, in dealing with cases of an equitable nature, adopts and follows the analogies furnished by the rules of law”).
• 242 517 US 706 (1996).
• 243 Id at 728–31.
• 244 See, for example, Fallon, Hart and Wechsler at 1108 (cited in note 13).
• 245 United States v Carolene Products Co , 304 US 144, 153 n 4 (1938).
• 246 In creating this broad-brush-stroke description of legal liberalism, I am indebted above all to the insightful treatment provided by Kalman, The Strange Career of Legal Liberalism (cited in note 183).
• 247 See generally Ely, Democracy and Distrust (cited in note 225).
• 248 See Kalman, The Strange Career of Legal Liberalism at 42–59 (cited in note 183).
• 249 Pullman , 312 US at 497–98.
• 250 Id at 497.
• 251 Barbara Y. Welke, Beyond Plessy : Space, Status, and Race in the Era of Jim Crow , 2000 Utah L Rev 267, 290 n 87. See also Judith Resnik, Rereading “The Federal Courts”: Revising the Domain of Federal Courts Jurisprudence at the End of the Twentieth Century , 47 Vand L Rev 1021, 1039 (1994) (noting that “[r]ace, class, and gender, and the effects thereof, are discretely downplayed” in the usual treatment of the Pullman case by federal courts scholars).
• 252 Pullman , 312 US at 498. See also Martha A. Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine , 122 U Pa L Rev 1071, 1077 (1974).
• 253 Pullman , 312 US at 498.
• 255 See generally, for example, Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago 2d ed 2008) (arguing that courts are not effective at facilitating social change); Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford 2004) (arguing that the Supreme Court did not effect a significant change in civil rights but instead was only successful where it rode the wave of existing popular opinion, and sometimes was counterproductive in prompting a backlash). See also Tomiko Brown-Nagin, Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement 433–34 (Oxford 2011) (arguing that courts were a necessary, though not sufficient, part of effecting social change in the civil rights era).
• 256 See Ruth Bader Ginsburg, Speaking in a Judicial Voice , 67 NYU L Rev 1185, 1200–05 (1992) (discussing the court’s remand of a women’s rights case to the legislature where it could create laws that would “catch up with a changed world”) (quotation marks omitted), quoting Wendy W. Williams, Sex Discrimination: Closing the Law's Gender Gap, in The Burger Years: Rights and Wrongs in the Supreme Court 1969–1986 at 123 (Herman Schwartz ed 1987).
• 257 See Ann Althouse, How to Build a Separate Sphere: Federal Courts and State Power , 100 Harv L Rev 1485, 1489 (1987) (“Federal jurisdiction is needed to correct stagnant situations in which the states are not providing a forum or remedy for would-be federal plaintiffs.”).
• 258 For one version of this argument, suggesting that confusion about abstention could lead to the displacement of “cases that should receive federal court adjudication,” see Julie A. Davies, Pullman and Burford Abstention: Clarifying the Roles of State and Federal Courts in Constitutional Cases , 20 UC Davis L Rev 1, 22 (1986). See also Trainor v Hernandez , 431 US 434, 455 (1977) (Brennan dissenting) (“[I]t seems to me that this solicitousness for the State’s use of an unconstitutional ancillary proceeding to a civil lawsuit is hardly compelled by the great principles of federalism, comity, and mutual respect between federal and state courts that account for Younger and its progeny.”).
• 260 Neuborne, 90 Harv L Rev at 1109–10 (cited in note 259).
• 261 Id at 1105.
• 262 Theodore Eisenberg, Section 1983: Doctrinal Foundations and an Empirical Study , 67 Cornell L Rev 482, 539–40 (1982).
• 263 Id at 540.
• 264 Id at 541.
• 265 There is a long tradition, associated with Professor James Bradley Thayer, of thought about whether courts should be restrained and decide cases in modest and incremental ways. For a survey of this tradition, see generally, for example, Posner, 100 Calif L Rev 519 (cited in note 183). For Thayer’s classic articulation, see generally James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law , 7 Harv L Rev 129 (1893).
• 266 See, for example, Frank H. Easterbrook, Do Liberals and Conservatives Differ in Judicial Activism? , 73 U Colo L Rev 1401, 1403–04 (2002); Richard A. Posner, The Meaning of Judicial Self-Restraint , 59 Ind L J 1, 11–12 (1983).
• 267 For a discussion of the recent history of political uses of “judicial activism” and judicial restraint, see generally Jane S. Schacter, Putting the Politics of “Judicial Activism” in Historical Perspective , 2017 S Ct Rev 209, 221–223. For a historical study of the tension between democratic politics and the development of case law in the courts, see generally Kunal M. Parker, Common Law, History, and Democracy in America, 1790–1900: Legal Thought Before Modernism (Cambridge 2011).
• 268 I am indebted to Adam Mortara for his suggestions on potential strategic uses of abstention doctrine.
• 269 For perhaps the most notable recent iteration of this view, see Janus v American Federation of State, County, and Municipal Employees , 138 S Ct 2448, 2487, 2502 (2018) (Kagan dissenting), in which Justice Elena Kagan faulted the majority for using First Amendment free speech doctrine to impede economic and regulatory policies. The final sentences of her dissent cast the issue in terms of courts against democracy, “black-robed rulers overriding citizens’ choices.” Id at 2502. The First Amendment, she argued, was being misapplied; it “was meant not to undermine but to protect democratic governance.” Id.
• 271 See, for example, Robert H. Bork, The Impossibility of Finding Welfare Rights in the Constitution , 1979 Wash U L Q 695, 700–01 (1979). See also Schacter, 2017 S Ct Rev at 221–23 (cited in note 267).
• 272 For an insightful commentary on the changing role of restraint in the conservative legal discourse, see Joel Alicea, Chief Justice Roberts and the Changing Conservative Legal Movement (Public Discourse, July 10, 2012), archived at https://perma.cc/44TP-UXQG. See also generally Randy E. Barnett, The Wages of Crying “Restraint”: How John Roberts Ended Up as America’s Big Chief , 45 Am Spectator 16 (Sept 2012).
• 273 See, for example, Michael W. McConnell, Time, Institutions, and Interpretation , 95 BU L Rev 1745, 1777–85 (2015). See also Thomas R. Lee, Judicial Activism, Restraint, & the Rule of Law , 26 Utah Bar J 12, 13–14 (Nov 2013) (highlighting the negative views politicians have on judicial activism); David A. Strauss, Originalism, Conservatism, and Judicial Restraint , 34 Harv J L & Pub Pol 137, 144–46 (2011) (arguing that conservatives should prefer judicial minimalism and restraint instead of originalism); Stefanie A. Lindquist, Joseph L. Smith, and Frank B. Cross, The Rhetoric of Restraint and the Ideology of Activism , 24 Const Commen 103, 124–25 (2007).
• 274 See, for example, Obergefell v Hodges , 135 S Ct 2584, 2612, 2615–18 (2015) (Roberts dissenting).
• 275 See Amanda Frost and Stefanie A. Lindquist, Countering the Majoritarian Difficulty , 96 Va L Rev 719, 724 (2010).
• 276 For example, a modern progressive might want to protect campaign finance regulations from First Amendment attack; a conservative proponent of restraint might want to protect a regulation on the provision of abortions from challenges on the basis of substantive due process.
• 277 See Trust & Investment Advisers, Inc v Hogsett , 43 F3d 290, 293–94 (7th Cir 1994) (collecting cases); Green v City of Tucson , 255 F3d 1086, 1093 n 9 (9th Cir 2001) (en banc) (collecting cases).
• 278 See, for example, Traughber v Beauchane , 760 F2d 673, 675–76 (6th Cir 1985).
• 279 See, for example, Nivens v Gilchrist , 319 F3d 151, 153 (4th Cir 2003); Gwynedd Properties, Inc v Lower Gwynedd Township , 970 F2d 1195, 1199 (3d Cir 1992). The Ninth Circuit and the Seventh Circuit each employ a dual form of review—reviewing Younger abstention de novo, but other forms of abstention for abuse of discretion, at least as long as the minimum legal requirements for abstention are present. See Hogsett , 43 F3d at 293–94; World Famous Drinking Emporium, Inc v City of Tempe , 820 F2d 1079, 1081–82 (9th Cir 1987). See also Courthouse News Service v Planet , 750 F3d 776, 782 (9th Cir 2014) (explaining that even for Pullman abstention, the initial question of whether the requirements for abstention are met is a legal question reviewed de novo, and only if the Pullman requirements are met is the decision of whether to abstain reviewed for abuse of discretion).
• 280 See Martin H. Redish, Judge-Made Abstention and the Fashionable Art of “Democracy Bashing” , 40 Case W Res L Rev 1023, 1030–31 (1989); Redish, 94 Yale L J at 76 (cited in note 8). But see William P. Marshall, Abstention, Separation of Powers, and Recasting the Meaning of Judicial Restraint , 107 Nw U L Rev 881, 896–99 (2013) (critiquing Redish’s premise that abstention is unconstitutional, but commending Redish’s view that judicial restraint is not compatible with abstention).
• 281 See Fallon, et al, Hart and Wechsler at 20–21 (cited in note 13).
• 282 See Redish, 40 Case W Res L Rev at 1031–32 (cited in note 280).
• 283 See Ann Althouse, The Humble and the Treasonous: Judge-Made Jurisdiction Law , 40 Case W Res L Rev 1035, 1036 (1989).
• 284 See Herbert Wechsler, Toward Neutral Principles of Constitutional Law , 73 Harv L Rev 1, 15–16 (1959). Some, such as Professor Robert H. Bork, would see this as a natural concomitant of a restrained judiciary. See Robert H. Bork, Neutral Principles and Some First Amendment Problems , 47 Ind L J 1, 7 (1971). For discussion of Bork’s position, see generally Thomas B. Griffith, Was Bork Right About Judges? , 34 Harv J L & Pub Pol 157 (2011).
• 285 See Fallon, et al, Hart and Wechsler at 1113 (cited in note 13) (noting that the Supreme Court has given conflicting signals as to whether Pullman abstention is mandatory or discretionary).
• 286 See Heather K. Gerken, Distinguished Scholar in Residence Lecture: A User’s Guide to Progressive Federalism , 45 Hofstra L Rev 1087, 1087 (2017) (“[M]y main point is that federalism doesn’t have a political valence.”); Sutton, 51 Imperfect Solutions at 214 (cited in note 17) (“Federalism has no constituency, and it never will.”).
• 287 See generally Richard P. Nathan, There Will Always Be a New Federalism , 16 J Pub Admin Rsrch & Theory 499 (2006) (noting in the political context that federalism has made repeated comebacks, even after having supposedly died or become irrelevant, and arguing that federalism is opportunistic).

Why Federalism Matters

Subscribe to governance weekly, pietro s. nivola pietro s. nivola former brookings expert.

October 1, 2005

• 19 min read

“What do we want from federalism?” asked the late Martin Diamond in a famous essay written thirty years ago. His answer was that federalism— a political system permitting a large measure of regional self-rule—presumably gives the rulers and the ruled a “school of their citizenship,” “a preserver of their liberties,” and “a vehicle for flexible response to their problems.” These features, broadly construed, are said to reduce conflict between diverse communities, even as a federated polity affords inter-jurisdictional competition that encourages innovations and constrains the overall growth of government.

Alas, as Professor Diamond and just about anyone else who has studied the subject would readily acknowledge, the promise and practice of federalism are frequently at odds. A federal republic does not always train citizens and their elected officials better than does a unitary democratic state. Nor are federations always better at preserving liberties, managing conflicts, innovating, or curbing “big” government.

Whatever else it is supposed to do, however, a federal system should offer government a division of labor. Perhaps the first to fully appreciate that benefit was Alexis de Tocqueville. He admired the decentralized regime of the United States because, among other virtues, it enabled its national government to focus on primary public obligations (“a small number of objects,” he stressed, “sufficiently prominent to attract its attention”), leaving what he called society’s countless “secondary affairs” to lower levels of administration. Such a system, in other words, could help the central government keep its priorities straight.

Federalism’s several supposed advantages are weighed in this first of two Brookings Policy Briefs. A subsequent one will delve more deeply into the facet of particular interest to de Tocqueville: a sound allocation of competences among levels of government. For arguably, it is this matter above all that warrants renewed emphasis today, because America’s central government with its vast global security responsibilities is overburdened. 

Policy Brief #146

Ensuring Unity Sometimes nations face a stark choice: allow regions to federate and govern themselves, or risk national dissolution. Clear examples where federalism is the answer exist. Belgium would probably be a partitioned state now if Flanders had not been granted extensive self-government. If under Italy’s constitution, Sardinia, a large and relatively remote Italian island, had not been granted significant autonomy, it might well have harbored a violent separatist movement—like the one plaguing a neighboring island, Corsica, a rebellious province of unitary France.

Where truly profound regional linguistic, religious, or cultural differences persist, however, federating is by no means a guarantee of national harmony. Canada, Spain, and the former Yugoslavia are wellknown cases of federations that either periodically faced secessionist movements (Quebec), or have had to struggle with them continually (the Basques), or collapsed in barbarous civil wars (the Balkans). Iraq seems headed for the same fate. The Sunni minority there is resisting a draft constitution that would grant regional autonomy not only to the Kurds in the north but to Shiite sectarians in the oil-rich south. So far, proposed federalism for Iraq is proving to be a recipe for disaccord, not accommodation.

In much of America’s own history, federalism did not ease this country’s sectional tensions. On the contrary, a long sequence of compromises with the southern states in the first half of the nineteenth century failed to prevent the Civil War. Then, through the first half of the twentieth century, additional concessions to states’ rights did little to dismantle the South’s repulsive institution of racial apartheid. Southern separatism was subdued by a military defeat, not diplomatic give-and-take, and only further assertions of central power—starting with the Supreme Court’s school desegregation decision in 1954—began altering the region’s corrosive racial policies.

If we fast-forward to present day America, the thesis that federalism is what holds the country together seems no less questionable, though for a different reason. For all the hype about the country’s “culture wars,” the fact is that socially and culturally, the contemporary United States has become a remarkably integrated society, particularly when compared to other large nations such as India, Indonesia, and Nigeria, or even some smaller European states. Thanks largely to massive interregional migrations, economic dynamism, and ease of assimilation, contrasts between America’s deep South and the rest of the country seem minor today compared to, say, the continuing cultural chasm between the north and south of Italy. In America, where examples of religiously or ethnically distinct jurisdictions are mild ones, like Utah and Hawaii, it seems hard to argue that the nation’s fifty states represent keen territorial diversity, and that they are the secret to this country’s cohesion. Put more generally, the sub-national entities of an increasingly mobile and assimilative society such as ours tend to demand less independence than they once did, and how much of it they get may not make as much difference for national unity.

Laboratories of Democracy

In principle, empowering citizens to manage their own community’s affairs is supposed to enhance civic engagement in a democracy. Its “free and popular local and municipal institutions,” argued John Stuart Mill, provide “the peculiar training of a citizen, the practical part of the political education of a free people.” From this, informed deliberation and a pragmatic ability to respect both the will of the majority and the rights of minorities—in short, fundamental democratic values—are inculcated.

But in the real world of local politics, these results are often elusive. Prior to the Voting Rights Act of 1965, southern blacks got a “political education” all right, only not the kind Mill had in mind. Presently, even if it no longer perpetrates wholesale disenfranchisements, community governance can fall short in other ways: it edifies few people when few participate. Keep in mind that the average municipal election in the United States engages less than a third of the local electorate. And the smaller the community’s scale, the smaller the share of participants. At best, one in ten registered voters shows up at New England’s quaint town meetings.

If local self-government interests average citizens less than it should, maybe at least it still has much to teach their elected officials. Supplying thousands of state and local elective offices, a federal system like America’s creates a big market for professional politicians. Many of them (for example, state governors and big-city mayors) have demanding jobs. Their challenges help prepare the nation’s pool of future political leaders.

There is no question that those who attain high public office in the United States mostly rise through the ranks of the federal system’s multiple tiers, and have been schooled therein. Fifty-six senators in the current Congress were former state legislators or holders of state-wide elective offices. Four of America’s last five presidents have been governors. It is by no means clear, though, that the ex-governors who worked their way up federalism’s ladder outshine, for example, the national leaders of the United Kingdom. In the twentieth and twenty-first centuries, America elevated such former governors as Franklin D. Roosevelt, Ronald W. Reagan, and George W. Bush to the presidency. Were they better equipped than Britain’s leadership (think Winston Churchill, Margaret Thatcher, or Tony Blair)?

Not only that, but there also is some question just how relevant the lessons learned in, for example, the statehouses of relatively small states—like Georgia, Arkansas, or Vermont—are to the men and women who move from there onto the national, or international, stage. As a one-term governor of Georgia, Jimmy Carter had successfully reorganized that state’s modest bureaucracy and improved its budgetary performance. But the managerial magic he had worked in Georgia proved of limited use when, as president, Carter turned his attention to Washington’s bureaucratic behemoths, such as the Department of Health, Education and Welfare.

Or consider Bill Clinton’s presidency. Not infrequently, its cosmopolitan aspirations and impressive achievements were buried by the rest of this ex-governor’s agenda, which sometimes seemed incongruously steeped in parochial concerns. Clinton’s long speeches, we might recall, delved into the enforcement of truancy laws, the use of school uniforms, the math tests of eighth graders, the need to connect hospitalized children to the Internet, the marshaling of work-study students as reading tutors, the ability of medical insurance to cover annual mammograms, the revitalization of community waterfronts, the appropriate hospital stay for women after a mastectomy, the work of local development banks, the record of Burger King and other businesses in creating jobs for welfare recipients, and so on—in sum, preoccupations suited to governors, county supervisors, hospital administrators, or school boards. But to a world leader?

In 2004, another very good governor, Howard Dean, mounted a spirited campaign for the Democratic party’s presidential nomination. Dean pointed to his accomplishments in Vermont, a state that had (as Mark Singer observed in a January 2004 profile in The New Yorker ) a population smaller than metropolitan Omaha and an annual budget of barely a billion dollars. For a time, he became the front runner, the considerable limitations of his small-state political background notwithstanding. What was some of that experience like? According to an article in The New York Times (also in January 2004) reflecting on Dean’s gubernatorial years, “The profoundly local aspect of his job was clear in 2002, when he said, ‘I can assure you, of all the things that I had to live with…the most difficult were the cascades of calls in the summer of ’93 and ’94 about how long the wait was at the Department of Motor Vehicles.’”

No matter how seasoned and capable a governor may be, travails like these are not the same as those likely to be faced by anyone who aspires to lead the country, never mind the international community. Granted, there is no job that can adequately prepare a wouldbe president. Montpelier is not Washington, nor for that matter is Sacramento or Austin. Other things equal, however, a stint as the chief executive of a large place (like California or Texas) may offer a somewhat better test. Yet, more or less indiscriminately, the process of political recruitment in the United States seems to regard states large and small as equally promising springboards.

Policy Innovation

What about the states as laboratories for other experiments—the testing of new public policies, for instance?

Yes, there have been important policy innovations that had their origins, as Justice Louis Brandeis famously said, in a few courageous states. California has long been the pacesetter in the regulation of air quality. Texas provided a model for recent federal efforts to boost the performance of public schools (the No Child Left Behind Law). Wisconsin pioneered, among other novelties, the income tax and a safety net for the unemployed years before these ideas became national law. Yet, while myopic Washington insiders often pay too little attention to initiatives occurring outside the Beltway, aficionados of state government often devote too much. The significance of experimentation at the state and local level should be neither overlooked nor overstated.

Take the now-legendary example of welfare reform. Thanks to liberal use of federal administrative waivers in the early 1990s, the states took the lead in revising the nation’s system of public assistance. They were widely credited with setting the stage for the historic national legislation of 1996—and also for securing a dramatic decline in caseloads. How much of the decline, however, could be attributed to the actions of the states, both before and after the 1996 law, is actually a matter of considerable debate. Most of the caseload reduction had less to do with inventive state policies than with a strong economy and expanded federal aid (most notably, the Earned Income Tax Credit) to low-income persons who entered the workforce. In sum, although state experiments were undoubtedly instructive and consequential, other fundamentals were more so. One suspects that what holds for the welfare story also applies to some other local inventions—for example, smart growth strategies, school reform, or the deregulation of electric utilities—the impact of which state politicians sometimes exaggerate.

Competitive Federalism

Does federalism necessarily deliver leaner, more efficient government? There is reason to think that it could. The states are constitutionally obligated to balance their budgets. To spend, these governments have to tax—and that unpleasant requirement supposedly disciplines profligate politicians. So does interstate competition. Presumably few jurisdictions will indulge in lavish social programs that are magnets for dependents from neighboring jurisdictions, and that could cause overtaxed residents and businesses to exit.

The federated political structure of the United States does indeed appear to have some restraining effect, at least when compared to the unchecked welfare states of Europe. Whereas there, the beneficiaries of unemployment compensation, for instance, often seem entitled to limitless support, the American state-run model maxes out at six months, and ordinarily replaces only a portion of a jobless person’s lost wages. Why? Part of the reason is that no state in our locallyadministered system can afford to let its benefits get too far out of line with those of competing states.

That said, contrary to the wishes of conservatives and the fears of liberals, devolution does not inexorably shrink “big government.” In fact, measured in terms of public employment, it is the state and local sector that has been swelling. With roughly three million employees, the federal payroll today is about the same as it was a half a century ago, but the number of state employees quadrupled to five million. Nor has the central government’s spending outpaced that of the states and localities. Their outlays, only some of which are strictly mandated by Washington, more or less match federal ones.

The scope of government depends not just on how many people it employs or dollars it disburses but on what it ultimately does. But even by that criterion, the states are looming large. Phenomena such as the explosion of discretionary Medicaid spending for the “medically needy,” the work of state attorneys general that yielded a weighty legal settlement with the tobacco industry in 1998, the widening assault on improprieties in corporate governance, and increasingly aggressive measures to curb air pollution (including greenhouse gases), among other bold activities emanating from the states, suggest that, like it or not, much of the locus of vigorous government in recent years has shifted to state capitals.

In fact, so active have been the statehouses in the past decade that conservatives now frequently seem of two minds about federalism. They champion decentralization (when it suits them). But because decentralized government is not smaller, only situated differently, they also dissent. Confronting the surge of state activism, Republicans increasingly have favored national preemption of state powers in areas as diverse as tort law, land use regulation, and family policy. The proposed constitutional amendment barring marriages among gays is the latest case in point. Much as Roe v. Wade nationalized in a sweeping stroke the rules for abortions, the same-sex marriage amendment would toss into the scrap heap another traditional prerogative of the states: their control of matrimonial law.

When Washington Does It All

Opinions are bound to differ on which level of government should have the last word about marriages or abortions. More puzzling is how the central government has come to meddle incessantly in matters that are ordinarily much more mundane, often meeting little or no resistance. Contemporary American federalism badly needs a realignment here. For the often indiscriminate preoccupation of national policymakers with the details of local administration is not just wasteful; it can be irresponsible.

Let us glance at a small sample of local functions now monitored by federal agencies and courts. Federal law these days is effectively in the business of determining the minimum drinking age for motorists, setting the licensing standards for bus and truck drivers, judging the fitness tests for recruits of local police or fire departments, overseeing spillages from thousands of city storm sewers, requiring asbestos inspections in classrooms, enforcing child support payments, establishing quality standards for nursing homes, removing lead paint from housing units, replacing water coolers in school buildings, ordering sidewalk ramps on streets, deciding how long some unruly students in public schools can be suspended, purifying county water supplies, arresting carjackers, mandating special education programs for preschoolers, influencing how much a community has to pay its snowplow operators or transit workers, planning athletic facilities at state universities, supplying communities with public works and reimbursements for nearly any kind of natural disaster, telling localities in some states how to deploy firefighters at burning buildings, instructing passengers where to stand when riding municipal buses, and so on.

Several of these illustrations may sound farcical, but none is apocryphal. The directives for firefighters, for example, are among the many fastidious standards formulated by the Occupational Safety and Health Administration. The pettifogging about where to stand in buses is a Department of Transportation regulation, which, believe it or not, reads as follows:

• Every bus, which is designed and constructed so as to allow standees, shall be plainly marked with a line of contrasting color at least 2 inches wide or equipped with some other means so as to indicate to any person that he/she is prohibited from occupying a space forward of a perpendicular plane drawn through the rear of the driver’s seat and perpendicular to the longitudinal axis of the bus. Every bus shall have clearly posted at or near the front, a sign with letters at least one inch high stating that it is a violation of the Federal Highway Administration’s regulations for a bus to be operated with persons occupying the prohibited area.

Tangents like these are baffling. Why should a national cabinet department or regulatory bureaucracy be bothered with how “standees” ride local buses or how a town’s firefighters do their jobs? If municipal transit authorities or fire departments cannot be left to decide such particulars, what, if anything, are local governments for? Surely, most of the matters in question—putting out a fire, taking a bus ride, disciplining a troublemaker in school, removing hazards like asbestos or lead from a school or a house—rarely spill across jurisdictions and so do not justify intervention by a higher order of government.

Nor can a plausible case be made that central overseers are needed for each of these assignments because communities would otherwise “race to the bottom.” How many states and localities, if left to their own devices, would practice fire prevention so ineptly that they require tutelage from a federally approved manual? Before Congress acted to rid the Republic of asbestos, the great majority of states already had programs to find and remove the potentially hazardous substance. Long before the U.S. Environmental Protection Agency promulgated expensive new rules to curb lead poisoning, state and municipal code enforcement departments were also working to eliminate this danger to the public health.

Why the paternalists in Washington cannot resist dabbling in the quotidian tasks that need to be performed by state and local officials would require a lengthy treatise on bureaucratic behavior, congressional politics, and judicial activism. Suffice it to say that the propensity, whatever its source, poses at least two fundamental problems.

The first is that some state and local governments may become sloppier about fulfilling their basic obligations. The Hurricane Katrina debacle revealed how ill-prepared the city of New Orleans and the state of Louisiana were for a potent tropical storm that could inundate the region. There were multiple explanations for this error, but one may well have been habitual dependence of state and local officials on direction, and deliverance, by Uncle Sam. In Louisiana, a state that was receiving more federal aid than any other for Army Corps of Engineers projects, the expectation seemed to be that shoring up the local defenses against floods was chiefly the responsibility of Congress and the Corps, and that if the defenses failed, bureaucrats in the Federal Emergency Management Agency would instantly ride to the rescue. That assumption proved fatal. Relentlessly pressured to spend money on other local projects, and unable to plan centrally for every possible calamity that might occur somewhere in this huge country, the federal government botched its role in the Katrina crisis every step of the way—the flood prevention, the response, and the recovery. The local authorities in this tragedy should have known better, and taken greater precautions.

Apart from creating confusion and complacency in local communities, a second sort of disorder begot by a national government too immersed in their day-to-day minutia is that it may become less mindful of its own paramount priorities.

Consider an obvious one: the security threat presented by Islamic extremism. This should have been the U.S. government’s first concern, starting from at least the early 1990s. The prelude to September 11, 2001 was eventful and ominous. Fanatics with ties to Osama bin Laden had bombed the World Trade Center in 1993. Muslim militants had tried to hijack an airliner and crash it into the Eiffel Tower in 1994. U.S. military barracks in Dhahran, Saudi Arabia, were blown up, killing nearly a score of American servicemen in 1996. Courtesy of Al Qaeda, truck bombings at the American embassies in Tanzania and Kenya in 1998 caused thousands of casualties. Al Qaeda operatives attacked the USS Cole in 2000.

And so it went, year after year. What is remarkable was not that the jihadists successfully struck the Twin Towers again in the fall of 2001 but that the United States and its allies threw no forceful counterpunches during the preceding decade, and that practically nothing was done to prepare the American people for the epic struggle they would have to wage. Instead, the Clinton administration and both parties in Congress mostly remained engrossed in domestic issues, no matter how picayune or petty. Neither of the presidential candidates in the 2000 election seemed attentive to the fact that the country and the world were menaced by terrorism. On the day of reckoning, when word reached President George W. Bush that United Airlines flight 175 had slammed into a New York skyscraper, he was busy visiting a second-grade classroom at an elementary school in Sarasota, Florida.

The government’s missteps leading up to September 11th, in short, had to do with more than bureaucratic lapses of the kind identified in the 9/11 Commission’s detailed litany. The failure was also rooted in a kind of systemic attention deficit disorder. Diverting too much time and energy to what de Tocqueville had termed “secondary affairs,” the nation’s public servants from top to bottom grew distracted and overextended.

To be sure, the past four years have brought some notable changes. Fortifying the nation’s security and foreign policy, for instance, remains a problematic work in progress, but is at least no longer an item relegated to the hind sections of newspapers and presidential speeches. Nonetheless, distraction and overextension are old habits that the government in Washington hasn’t kicked. Controversies of the most local, indeed sub-local, sort—like the case of Terri Schiavo—still make their way to the top, transfixing Congress and even the White House.

The sensible way to disencumber the federal government and sharpen its focus is to take federalism seriously—which is to say, desist from fussing with the management of local public schools, municipal staffing practices, sanitation standards, routine criminal justice, family end-of-life disputes, and countless other chores customarily in the ambit of state and local governance. Engineering such a disengagement on a full scale, however, implies reopening a large and unsettled debate: What are the proper spheres of national and local authority?

How to think through that dilemma will be the subject of my next Policy Brief .

Governance Studies

William A. Galston

September 4, 2024

Online Only

2:00 pm - 3:30 pm EDT

3.2 The Evolution of American Federalism

Learning objectives.

By the end of this section, you will be able to:

• Describe how federalism has evolved in the United States
• Compare different conceptions of federalism

The Constitution sketches a federal framework that aims to balance the forces of decentralized and centralized governance in general terms; it does not flesh out standard operating procedures that say precisely how the states and federal governments are to handle all policy contingencies imaginable. Therefore, officials at the state and national levels have had some room to maneuver as they operate within the Constitution’s federal design. This has led to changes in the configuration of federalism over time, changes corresponding to different historical phases that capture distinct balances between state and federal authority.

THE STRUGGLE BETWEEN NATIONAL POWER AND STATE POWER

As George Washington’s secretary of the treasury from 1789 to 1795, Alexander Hamilton championed legislative efforts to create a publicly chartered bank. For Hamilton, the establishment of the Bank of the United States was fully within Congress’s authority, and he hoped the bank would foster economic development, print and circulate paper money, and provide loans to the government. Although Thomas Jefferson , Washington’s secretary of state, staunchly opposed Hamilton’s plan on the constitutional grounds that the national government had no authority to create such an instrument, Hamilton managed to convince the reluctant president to sign the legislation. 20

When the bank’s charter expired in 1811, Jeffersonian Democratic-Republicans prevailed in blocking its renewal. However, the fiscal hardships that plagued the government during the War of 1812 , coupled with the fragility of the country’s financial system, convinced Congress and then-president James Madison to create the Second Bank of the United States in 1816. Many states rejected the Second Bank, arguing that the national government was infringing upon the states’ constitutional jurisdiction.

A political showdown between Maryland and the national government emerged when James McCulloch, an agent for the Baltimore branch of the Second Bank, refused to pay a tax that Maryland had imposed on all out-of-state chartered banks. The standoff raised two constitutional questions: Did Congress have the authority to charter a national bank? Were states allowed to tax federal property? In McCulloch v. Maryland , Chief Justice John Marshall ( Figure 3.8 ) argued that Congress could create a national bank even though the Constitution did not expressly authorize it. 21 Under the necessary and proper clause of Article I , Section 8, the Supreme Court asserted that Congress could establish “all means which are appropriate” to fulfill “the legitimate ends” of the Constitution. In other words, the bank was an appropriate instrument that enabled the national government to carry out several of its enumerated powers, such as regulating interstate commerce, collecting taxes, and borrowing money.

This ruling established the doctrine of implied powers, granting Congress a vast source of discretionary power to achieve its constitutional responsibilities. The Supreme Court also sided with the federal government on the issue of whether states could tax federal property. Under the supremacy clause of Article VI , legitimate national laws trump conflicting state laws. As the court observed, “the government of the Union, though limited in its powers, is supreme within its sphere of action and its laws, when made in pursuance of the constitution, form the supreme law of the land.” Maryland’s action violated national supremacy because “the power to tax is the power to destroy.” This second ruling established the principle of national supremacy, which prohibits states from meddling in the lawful activities of the national government.

Defining the scope of national power was the subject of another landmark Supreme Court decision in 1824. In Gibbons v. Ogden , the court had to interpret the commerce clause of Article I , Section 8; specifically, it had to determine whether the federal government had the sole authority to regulate the licensing of steamboats operating between New York and New Jersey. 22 Aaron Ogden, who had obtained an exclusive license from New York State to operate steamboat ferries between New York City and New Jersey, sued Thomas Gibbons, who was operating ferries along the same route under a coasting license issued by the federal government. Gibbons lost in New York state courts and appealed. Chief Justice Marshall delivered a two-part ruling in favor of Gibbons that strengthened the power of the national government. First, interstate commerce was interpreted broadly to mean “commercial intercourse” among states, thus allowing Congress to regulate navigation. Second, because the federal Licensing Act of 1793, which regulated coastal commerce, was a constitutional exercise of Congress’s authority under the commerce clause, federal law trumped the New York State license-monopoly law that had granted Ogden an exclusive steamboat operating license. As Marshall pointed out, “the acts of New York must yield to the law of Congress.” 23

Various states railed against the nationalization of power that had been going on since the late 1700s. When President John Adams signed the Sedition Act in 1798, which made it a crime to speak openly against the government, the Kentucky and Virginia legislatures passed resolutions declaring the act null on the grounds that they retained the discretion to follow national laws. In effect, these resolutions articulated the legal reasoning underpinning the doctrine of nullification —that states had the right to reject national laws they deemed unconstitutional. 24

A nullification crisis emerged in the 1830s over President Andrew Jackson’s tariff acts of 1828 and 1832. Led by John Calhoun , President Jackson’s vice president, nullifiers argued that high tariffs on imported goods benefited northern manufacturing interests while disadvantaging economies in the South. South Carolina passed an Ordinance of Nullification declaring both tariff acts null and void and threatened to leave the Union. The federal government responded by enacting the Force Bill in 1833, authorizing President Jackson to use military force against states that challenged federal tariff laws. The prospect of military action coupled with the passage of the Compromise Tariff Act of 1833 (which lowered tariffs over time) led South Carolina to back off, ending the nullification crisis.

The ultimate showdown between national and state authority came during the Civil War . Prior to the conflict, in Dred Scott v. Sandford , the Supreme Court ruled that the national government lacked the authority to ban slavery in the territories. 25 But the election of President Abraham Lincoln in 1860 led eleven southern states to secede from the United States because they believed the new president would challenge the institution of slavery. What was initially a conflict to preserve the Union became a conflict to end slavery when Lincoln issued the Emancipation Proclamation in 1863, freeing all enslaved people in the rebellious states. The defeat of the South had a huge impact on the balance of power between the states and the national government in two important ways. First, the Union victory put an end to the right of states to secede and to challenge legitimate national laws. Second, Congress imposed several conditions for readmitting former Confederate states into the Union; among them was ratification of the Fourteenth and Fifteenth Amendment s. In sum, after the Civil War the power balance shifted toward the national government, a movement that had begun several decades before with McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824).

The period between 1819 and the 1860s demonstrated that the national government sought to establish its role within the newly created federal design, which in turn often provoked the states to resist as they sought to protect their interests. With the exception of the Civil War, the Supreme Court settled the power struggles between the states and national government. From a historical perspective, the national supremacy principle introduced during this period did not so much narrow the states’ scope of constitutional authority as restrict their encroachment on national powers. 26

DUAL FEDERALISM

The late 1870s ushered in a new phase in the evolution of U.S. federalism. Under dual federalism , the states and national government exercise exclusive authority in distinctly delineated spheres of jurisdiction. Like the layers of a cake, the levels of government do not blend with one another but rather are clearly defined. Two factors contributed to the emergence of this conception of federalism. First, several Supreme Court rulings blocked attempts by both state and federal governments to step outside their jurisdictional boundaries. Second, the prevailing economic philosophy at the time loathed government interference in the process of industrial development.

Industrialization changed the socioeconomic landscape of the United States. One of its adverse effects was the concentration of market power. Because there was no national regulatory supervision to ensure fairness in market practices, collusive behavior among powerful firms emerged in several industries. 27 To curtail widespread anticompetitive practices in the railroad industry, Congress passed the Interstate Commerce Act in 1887, which created the Interstate Commerce Commission. Three years later, national regulatory capacity was broadened by the Sherman Antitrust Act of 1890, which made it illegal to monopolize or attempt to monopolize and conspire in restraining commerce ( Figure 3.9 ). In the early stages of industrial capitalism, federal regulations were focused for the most part on promoting market competition rather than on addressing the social dislocations resulting from market operations, something the government began to tackle in the 1930s. 28

The new federal regulatory regime was dealt a legal blow early in its existence. In 1895, in United States v. E. C. Knight , the Supreme Court ruled that the national government lacked the authority to regulate manufacturing. 29 The case came about when the government, using its regulatory power under the Sherman Act, attempted to override American Sugar’s purchase of four sugar refineries, which would give the company a commanding share of the industry. Distinguishing between commerce among states and the production of goods, the court argued that the national government’s regulatory authority applied only to commercial activities. If manufacturing activities fell within the purview of the commerce clause of the Constitution, then “comparatively little of business operations would be left for state control,” the court argued.

In the late 1800s, some states attempted to regulate working conditions. For example, New York State passed the Bakeshop Act in 1897, which prohibited bakery employees from working more than sixty hours in a week. In Lochner v. New York , the Supreme Court ruled this state regulation that capped work hours unconstitutional, on the grounds that it violated the due process clause of the Fourteenth Amendment. 30 In other words, the right to sell and buy labor is a “liberty of the individual” safeguarded by the Constitution, the court asserted. The federal government also took up the issue of working conditions, but that case resulted in the same outcome as in the Lochner case. 31

COOPERATIVE FEDERALISM

The Great Depression of the 1930s brought economic hardships the nation had never witnessed before ( Figure 3.10 ). Between 1929 and 1933, the national unemployment rate reached 25 percent, industrial output dropped by half, stock market assets lost more than half their value, thousands of banks went out of business, and the gross domestic product shrunk by one-quarter. 32 Given the magnitude of the economic depression, there was pressure on the national government to coordinate a robust national response along with the states.

Cooperative federalism was born of necessity and lasted well into the twentieth century as the national and state governments each found it beneficial. Under this model, both levels of government coordinated their actions to solve national problems, such as the Great Depression and the civil rights struggle of the following decades. In contrast to dual federalism, it erodes the jurisdictional boundaries between the states and national government, leading to a blending of layers as in a marble cake. The era of cooperative federalism contributed to the gradual incursion of national authority into the jurisdictional domain of the states, as well as the expansion of the national government’s power in concurrent policy areas. 33

The New Deal programs President Franklin D. Roosevelt proposed as a means to tackle the Great Depression ran afoul of the dual-federalism mindset of the justices on the Supreme Court in the 1930s. The court struck down key pillars of the New Deal—the National Industrial Recovery Act and the Agricultural Adjustment Act , for example—on the grounds that the federal government was operating in matters that were within the purview of the states. The court’s obstructionist position infuriated Roosevelt, leading him in 1937 to propose a court-packing plan that would add one new justice for each one over the age of seventy, thus allowing the president to make a maximum of six new appointments. Before Congress took action on the proposal, the Supreme Court began leaning in support of the New Deal as Chief Justice Charles Evans Hughes and Justice Owen Roberts changed their view on federalism. 34

In National Labor Relations Board (NLRB) v. Jones and Laughlin Steel , 35 for instance, the Supreme Court ruled the National Labor Relations Act of 1935 constitutional, asserting that Congress can use its authority under the commerce clause to regulate both manufacturing activities and labor-management relations. The New Deal changed the relationship Americans had with the national government. Before the Great Depression , the government offered little in terms of financial aid, social benefits, and economic rights. After the New Deal, it provided old-age pensions (Social Security), unemployment insurance, agricultural subsidies, protections for organizing in the workplace, and a variety of other public services created during Roosevelt’s administration.

In the 1960s, President Lyndon Johnson ’s administration expanded the national government’s role in society even more. Medicaid (which provides medical assistance to the indigent), Medicare (which provides health insurance to the elderly and some people with disabilities), and school nutrition programs were created. The Elementary and Secondary Education Act (1965), the Higher Education Act (1965), and the Head Start preschool program (1965) were established to expand educational opportunities and equality ( Figure 3.12 ). The Clean Air Act (1965), the Highway Safety Act (1966), and the Fair Packaging and Labeling Act (1966) promoted environmental and consumer protection. Finally, laws were passed to promote urban renewal, public housing development, and affordable housing. In addition to these Great Society programs, the Civil Rights Act (1964) and the Voting Rights Act (1965) gave the federal government effective tools to promote civil rights equality across the country.

While the era of cooperative federalism witnessed a broadening of federal powers in concurrent and state policy domains, it is also the era of a deepening coordination between the states and the federal government in Washington. Nowhere is this clearer than with respect to the social welfare and social insurance programs created during the New Deal and Great Society eras, most of which are administered by both state and federal authorities and are jointly funded. The Social Security Act of 1935, which created federal subsidies for state-administered programs for the elderly; people with disabilities; dependent mothers; and children, gave state and local officials wide discretion over eligibility and benefit levels. The unemployment insurance program, also created by the Social Security Act, requires states to provide jobless benefits, but it allows them significant latitude to decide the level of tax to impose on businesses in order to fund the program as well as the duration and replacement rate of unemployment benefits. A similar multilevel division of labor governs Medicaid and Children’s Health Insurance. 36

Thus, the era of cooperative federalism left two lasting attributes on federalism in the United States. First, a nationalization of politics emerged as a result of federal legislative activism aimed at addressing national problems such as marketplace inefficiencies, social and political inequality, and poverty. The nationalization process expanded the size of the federal administrative apparatus and increased the flow of federal grants to state and local authorities, which have helped offset the financial costs of maintaining a host of New Deal- and Great Society–era programs. The second lasting attribute is the flexibility that states and local authorities were given in the implementation of federal social welfare programs. One consequence of administrative flexibility, however, is that it has led to cross-state differences in the levels of benefits and coverage. 37

NEW FEDERALISM

During the administrations of Presidents Richard Nixon (1969–1974) and Ronald Reagan (1981–1989), attempts were made to reverse the process of nationalization—that is, to restore states’ prominence in policy areas into which the federal government had moved in the past. New federalism is premised on the idea that the decentralization of policies enhances administrative efficiency, reduces overall public spending, and improves policy outcomes. During Nixon’s administration, general revenue sharing programs were created that distributed funds to the state and local governments with minimal restrictions on how the money was spent. The election of Ronald Reagan heralded the advent of a “devolution revolution” in U.S. federalism, in which the president pledged to return authority to the states according to the Constitution. In the Omnibus Budget Reconciliation Act of 1981, congressional leaders together with President Reagan consolidated numerous federal grant programs related to social welfare and reformulated them in order to give state and local administrators greater discretion in using federal funds. 38

However, Reagan’s track record in promoting new federalism was inconsistent. This was partly due to the fact that the president’s devolution agenda met some opposition from Democrats in Congress, moderate Republicans, and interest groups, preventing him from making further advances on that front. For example, his efforts to completely devolve Aid to Families With Dependent Children (a New Deal-era program) and food stamps (a Great Society-era program) to the states were rejected by members of Congress, who feared states would underfund both programs, and by members of the National Governors’ Association, who believed the proposal would be too costly for states. Reagan terminated general revenue sharing in 1986. 39

Several Supreme Court rulings also promoted new federalism by hemming in the scope of the national government’s power, especially under the commerce clause. For example, in United States v. Lopez , the court struck down the Gun-Free School Zones Act of 1990, which banned gun possession in school zones. 40 It argued that the regulation in question did not “substantively affect interstate commerce.” The ruling ended a nearly sixty-year period in which the court had used a broad interpretation of the commerce clause that by the 1960s allowed it to regulate numerous local commercial activities. 41

However, many would say that the years since the 9/11 attacks have swung the pendulum back in the direction of central federal power. The creation of the Department of Homeland Security federalized disaster response power in Washington, and the Transportation Security Administration was created to federalize airport security. Broad new federal policies and mandates have also been carried out in the form of the Faith-Based Initiative and No Child Left Behind (during the George W. Bush administration) and the Affordable Care Act (during Barack Obama’s administration).

Finding a Middle Ground

Cooperative federalism versus new federalism.

The challenges of the 1930s led many to question the merits of dual federalism, where the states and the national governments exercised exclusive authority in distinctly delineated spheres of jurisdiction. The result was the birth of cooperative federalism. In this view of federalism, the jurisdictional boundaries between the national and state governments were eroded to allow for greater cooperation between both governments. While this expansion of national government power was crucial in tackling the problems of the Great Depression, environmental degradation, and civil rights abuses, many resented the federal incursions into what had earlier been state matters. These concerns led to the emergence of new federalism in the 1970s and '80s. New federalism was premised on the idea that the decentralization of policies enhanced administrative efficiency and improved outcomes. Rather than simply a return to the old dual federalism model, new federalism continued much of the federal spending but rolled back many of the restrictions on what states could do with their federal funds.

Cooperative federalism has several merits:

• Because state and local governments have varying fiscal capacities, the national government’s involvement in state activities such as education, health, and social welfare is necessary to ensure some degree of uniformity in the provision of public services to citizens in richer and poorer states.
• The problem of collective action, which dissuades state and local authorities from raising regulatory standards for fear they will be disadvantaged as others lower theirs, is resolved by requiring state and local authorities to meet minimum federal standards (e.g., minimum wage and air quality).
• Federal assistance is necessary to ensure state and local programs that generate positive externalities are maintained. For example, one state’s environmental regulations impose higher fuel prices on its residents, but the externality of the cleaner air they produce benefits neighboring states. Without the federal government’s support, this state and others like it would underfund such programs.

New federalism has advantages as well:

• Because of differences among states, one-size-fits-all features of federal laws are suboptimal. Decentralization accommodates the diversity that exists across states.
• By virtue of being closer to citizens, state and local authorities are better than federal agencies at discerning the public’s needs.
• Decentralized federalism fosters a marketplace of innovative policy ideas as states compete against each other to minimize administrative costs and maximize policy output.

Which model of federalism do you think works best for the United States? Why?

Link to Learning

The leading international journal devoted to the practical and theoretical study of federalism is called Publius: The Journal of Federalism . Find out where its name comes from.

This book may not be used in the training of large language models or otherwise be ingested into large language models or generative AI offerings without OpenStax's permission.

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• Authors: Glen Krutz, Sylvie Waskiewicz, PhD
• Publisher/website: OpenStax
• Book title: American Government 3e
• Publication date: Jul 28, 2021
• Location: Houston, Texas
• Book URL: https://openstax.org/books/american-government-3e/pages/1-introduction
• Section URL: https://openstax.org/books/american-government-3e/pages/3-2-the-evolution-of-american-federalism

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Foundations of U.S. Federalism

by Lee Rosenthal and Gregory P. Joseph

What precisely is American federalism? In their seminal work on federal jurisdiction, Felix Frankfurter and Wilber Katz allude to a “dynamic struggle” between federal and state power, the ebb and flow of competing, sometimes conflicting, spheres of federal and state power and influence. In many respects, the story of American government is the story of how that struggle has been resolved.

The antecedents of American federalism trace to colonial days, when the concept of divided sovereign power began to take shape. At the beginning of the Revolutionary War, the thirteen colonies declared themselves to be free and independent states. During the hostilities and at the War’s end, the newly formed states recognized that they needed to operate together to function adequately on the new national stage and to enter the world stage.

America’s first attempt to codify federalism — the Articles of Confederation of 1781 — failed. Replaced by the Constitution of 1787, this sturdy document and the government it established have survived the tenuous early days of the Republic, a Civil War, serious economic depressions, America’s involvement in two World Wars, and 227 years of innumerable internal and external challenges. This paper briefly outlines how American federalism developed and how it serves as the basic organizing principle of American government.

American Federalism: Prerevolutionary Underpinnings

Reflecting on America’s early political development, Alexis de Tocqueville commented that “[i]n America . . . it may be said that the township was organized before the county, the county before the state, the state before the union.” 1 America’s earliest political associations were forged at a local level. Early colonists found themselves separated from their sovereign’s authority and protection by a vast ocean and from their fellow colonists by a vast geographic expanse. As a consequence, they organized and largely governed their day-to-day lives independently and locally.

In 1643, the first American effort to create a political union among the colonies began in Boston. Faced with the need to defend and maintain security over a large territory — and with little hope of receiving aid from England due to the “sad distractions” of the English Civil War — the New England settlers found themselves “convinced . . . of the necessity of banding together to resist destruction. . . .” 2  Delegates from Massachusetts, New Plymouth, Connecticut, and New Haven formed the New England Confederation, “a firm and perpetual league of friendship and amity for offense and defense, mutual advice and succor upon all just occasions, both for preserving and propagating the truth and liberties of the Gospel and for their own mutual safety and welfare.” 3  Their union lasted four decades, until James II folded these colonies into the new Dominion of New England in 1684. 4

Approximately a century after forming the New England Confederation, the colonies again found the need to confederate due to mutual pressing concerns, including relations with Native Americans and each other and the possibility of a French attack. Representatives from the British North American Colonies adopted the Albany Plan of Union on July 10, 1754. The Plan provided that each colony would select members of a Grand Council and the British government would appoint a “president General.” 5   One of the most prominent Plan supporters was Benjamin Franklin. His well-known “Join, or Die” political sketch, first published in Franklin’s Pennsylvania Gazette on May 9, 1754, shows a snake cut into eight pieces. Each piece is labeled with the initials of one of the colonies, except that the four New England colonies are represented by “N.E.” at the snake’s head. 6 “Join, or Die” later became a rallying cry for the Revolutionary War and is perhaps the earliest pictorial representation of the nation’s budding federalism. Neither the New England Confederation nor the Albany Plan of Union sought to sever or even to weaken ties with England. To the contrary, Franklin hoped that the Albany Plan would increase the British participation in the colonies. “Britain and her Colonies should be considered as one Whole, and not as different States with separate Interests.” 7  The New England Confederation, and the Albany Plan of Union — even though it failed — formed precedent for the idea that the colonies could join together to pursue mutual interests, while simultaneously retaining individual power over day-to-day political activities.

The Impact of the Revolutionary War: An Impetus to Federalism and the Failure of the Articles of Confederation

The need for some degree of centralization among the various colonies became clear during the Revolutionary War. The demands of raising the army, putting it under a central command, supplying it, and raising funds for it exceeded state and local government capabilities. The revolutionaries recognized that some confederation was needed, but they remained deeply suspicious of centralized power. 8  The implications of failure were not lost on the revolutionaries. In 1775, Silas Dean wrote to Patrick Henry that, “[i]f a reconciliation with G Britain take place, it will be obtained on the best terms, by the Colonies being united, and be the more like to be preserved, on just and equal Terms; if no reconciliation is to be had without a Confederation We are ruined to all intents and purposes.” 9 The wartime urgency and the necessity of union, combined with the fear of a new overarching sovereign, led the revolutionaries to ratify the Articles of Confederation on March 1, 1781. The Articles left the states as the source of sovereign power but created a new central government with its powers derived from the consent of the states. 10

Americans were cautious in creating this new centralized government. “Whatever their collective commitments to new government, the revolutionaries were in no mood to issue blank checks in the form of another strong central government that could become as harmful as the one they fought to remove.” 11  The central government under the Articles was relatively feeble. The states delegated the central government limited powers and even more limited resources. That government was unable to levy taxes or regulate commerce and depended on the states for revenue; there was no executive and no independent judiciary; there were no standing land or sea forces; and any change to the Articles required the states’ unanimous vote. Exercising the limited powers the new government did have, including making treaties and coining money, often required a majority or supermajority vote.

Postrevolutionary Needs

The Articles proved unworkable. Disputes among states were difficult to resolve, and the central government was underfunded and unable to compel delinquent states to pay their shares of common expenditures. By 1784, a disagreement over the use of the Potomac River highlighted these problems:

First, all the other States were asked to agree to send delegates to the meeting, and all the States hardly ever agreed to do anything; second, if the meeting did take place it must agree upon a report to the States, and there was no reason to expect greater harmony in this assemblage than there was in the Continental Congress, where discord reigned; third, if a plan should be agreed upon, under the terms of the call of the meeting every State must accept it before it could become effective, and it seemed preposterous to expect such unanimity from such antagonistic elements. But affairs were rushing to a crisis, and it was clear that something must be done to save the Union from disintegration and America from disgrace. Far-seeing men began seriously to apprehend that soon the people who had won a glorious victory against Great Britain would fall back under the yoke of that or some other foreign power. The most dangerous and demoralizing inclinations of weak human nature were becoming more and more in the ascendancy in the State governments — a tendency to pass law by which the fulfillment of contracts might be avoided, to stamp paper with figures and promises and call it money, to repudiate debts and avoid obligations of honest men. 12 The challenge was to preserve state sovereignty within a national polity that could operate on a world stage, resolve interstate differences, and facilitate common interests. Fears that a central government would accumulate too much power and erode state sovereignty persisted, along with the fear that no central authority could govern such a huge expanse of territory.

The solution the Framers posited and the states adopted was the federalism embodied in the Constitution. “The Framers split the atom of sovereignty. The genius of their idea was that American citizens would have two political capacities, one state and one federal, each protected from incursion by the other.” 13   One scholar has described this federalism “as a new-modeled creation cobbled together out of a mix of necessity (the existence of the states) and theory (the belief that republics could not be easily maintained across a large territory).” 14   The basic structural characteristics of this “more perfect union” formed the basis of the system of American government that continues to the present.

Developing “A More Perfect Union”

Between May and September of 1787, the Constitutional Convention met in Philadelphia to address and try to remedy the failures of the Articles of Confederation. Although the word “federalism” appears nowhere in the Constitution, it pervades the structure of the government the document creates.

Article I, Section 8 specifically enumerates the powers of Congress. At the time of the founding, there was little controversy that many of these powers were best suited for national regulation, including the power to provide for a common defense, declare war, raise an army and maintain a navy, regulate naturalization, coin money, regulate international commerce, and punish piracy and violations of international law. 15 Other powers in Article I, Section 8, however, have proved controversial and have been interpreted to permit the expansion of the federal government and restrictions on powers of the states. The Commerce Clause, which empowers Congress to “regulate commerce . . . among the several states . . . ,” 16  is among the most controversial. “Commerce” can be read restrictively, to refer to a category of activities distinct from, for example, manufacturing, farming, or mining, preventing the federal government from using the Commerce Clause to regulate these and similar activities. This narrow reading is consistent with the Supreme Court’s interpretation for the first century after ratification, and with current scholarship on the original meaning of the Clause. 17 The Commerce Clause can also be, and has been, read to allow Congress to regulate any activity that in the aggregate has an effect on a national market, even if the conduct is purely intrastate. 18 The Constitution’s Taxation Clause, which provides Congress with the power to tax and spend to “provide for the . . . general Welfare of the United States,” 19 similarly has been “controversial since it first saw the light of day.” 20  Does this phrase mean that Congress can spend only in connection with the powers otherwise granted to Congress or for any good purpose? Does it permit Congress to regulate through spending? These questions have been the subject of heated debate, 21 and the answers have had a substantial impact on the balance of federal and state power. 22

Finally, the Necessary and Proper Clause, which grants Congress the power to “make all laws which shall be necessary and proper for carrying into execution” its other enumerated powers, 23 has profound federalism implications, depending on how broadly or narrowly the term “necessary” is interpreted. 24   In addition to Article I, Section 8, other parts of the Constitution provide key features of the federalist system. Article I, Section 10 prohibits states from regulating in certain areas. Article VI makes the “Constitution, and the Laws of the United States . . . and all Treaties made . . . the supreme Law of the Land.” Under the constitutional structure, all powers the Constitution neither delegated to the federal government nor prohibited to the states are reserved to the states or to the people. This structure was later made explicit in the Tenth Amendment.

In their Federalist Papers , Alexander Hamilton, James Madison, and John Jay promoted state ratification of the Constitution. In Federalist No. 9, Hamilton attempted to assuage the concerns that the states would lose sovereignty under the new Constitution:

So long as the separate organization of the members be not abolished . . . though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty . . . and leaves in their possession certain exclusive and very important portions of sovereign power. 25

In Federalist No. 51, Hamilton argued that federalism would help limit the ability of the proposed new central government to abuse its powers:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. 26 The Federalist Papers repeatedly address concerns that the proposed federal government would run roughshod over the states. 27   Federalist No. 39 focused on the limited powers of the federal government and the continuing sovereignty of the states:

Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution. . . .

[T]he proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. . . . Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact . . . . 28 Federalist No. 39 maintained that there must be some arbiter to resolve disputes among the states and that this limited sacrifice of state sovereignty was preferable to resolution by “the sword and a dissolution of the compact.” Equally noteworthy is the distinction drawn between a national and federal government, the former indicative of a boundless overarching power, the latter representing a government of limited enumerated powers.

While the Federalist Papers emphasized that the states retained their sovereignty, the authors stressed that some limits on state sovereignty were essential for the welfare of the American people:

[I]f, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States? Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? 29

There was fervent opposition to the federalism built into the Constitution. Robert Yates and John Lansing, New York’s delegates to the Constitutional Convention, wrote to New York Governor George Clinton on Dec. 21, 1787, that, in addition to lacking authority to consider the idea of a new government, a central authority would also oppress faraway citizens:

[W]e entertained an opinion that a general government, however guarded by declarations of rights, or cautionary provisions, must unavoidably, in a short time, be productive of the destruction of the civil liberty of such citizens who could be effectually coerced by it, by reason of the extensive territory of the United States, the dispersed situation of its inhabitants, and the insuperable difficulty of controlling or counteracting the views of a set of men (however unconstitutional and oppressive their acts might be) possessed of all the powers of government, and who, from their remoteness from their constituents, and necessary permanency of office, could not be supposed to be uniformly actuated by an attention to their welfare and happiness . . . . 30

They were also concerned that “the expense of supporting” the new government “would become intolerably burdensome” and that many citizens would be “necessarily . . . unknown” to the national representatives given the size of the new country. 31

The antifederalists were well aware that the stakes were high:

If the constitution, offered to your acceptance, be a wise one, calculated to preserve the invaluable blessings of liberty, to secure the inestimable rights of mankind, and promote human happiness, then, if you accept it, you will lay a lasting foundation of happiness for millions yet unborn; generations to come will rise up and call you blessed. . . . But if, on the other hand, this form of government contains principles that will lead to the subversion of liberty — if it tends to establish a despotism, or, what is worse, a tyrannic aristocracy; then, if you adopt it, this only remaining asylum for liberty will be shut up, and posterity will execrate your memory. 32

Many antifederalists, fearful of a powerful central government, demanded a Bill of Rights, which, in 1791, became the first ten amendments to the Constitution.

The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Writing in 1833, Justice Joseph Story noted that the Ninth Amendment “was manifestly introduced to prevent any perverse, or ingenious misapplication of the well known maxim, that an affirmation in particular cases implies a negation in all others . . . .” 33 The Tenth Amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Tenth Amendment made explicit that “what is not conferred, is withheld, and belongs to the state authorities, if invested by their constitutions of government respectively in them; and if not so invested, it is retained BY THE PEOPLE, as a part of their residuary sovereignty.” 34

On June 21, 1788, the ninth state, New Hampshire, ratified the Constitution, and it became effective. 35  According to one scholarly view, federalism was “the greatest of American contributions to the art of government.” 36  Alexis de Tocqueville celebrated this singular achievement: “This Constitution . . . rests upon a novel theory, which may be considered as a great invention in modern political science . . . . [A] form of government has been found out which is neither exactly national nor federal . . . . [T]he new word which will one day designate this novel invention does not yet exist.” 37

Federalism In Practice: The Early Precedents

The federal courts quickly became the arbiter of federalism, defining the relative powers of the federal and state governments. In 1810, the Supreme Court, then a young institution still establishing its authority, ruled in Fletcher v. Peck 38  that Georgia’s legislature could not invalidate a contract because the federal Constitution did not permit bills of attainder or ex post facto laws. Chief Justice John Marshall carefully noted that the Court did not intend any “disrespect of the legislature of Georgia, or of its acts.” 39  Despite this deferential tone, Fletcher v. Peck established the principle that the Supreme Court has the power to strike down an unconstitutional state law.

In 1816, the Supreme Court ruled that it could also override state courts in Martin v. Hunter’s Lessee . 40  Four years earlier, the Supreme Court had ruled in Fairfax’s Devisee v. Hunter’s Lessee 41  that the Jay Treaty between the United States and Britain precluded Virginia from appropriating the property of a loyalist. The Virginia Supreme Court ruled that it was not bound by the Supreme Court’s ruling, stating: “The court is unanimously of opinion, that the appellate power of the supreme court of the United States does not extend to this court . . . .” 42  In Martin , the Supreme Court reemphasized that it walked carefully when it reviewed state-court judgments. “The great respectability, too, of the court whose decisions we are called upon to review, and the entire deference which we entertain for the learning and ability of that court, add much to the difficulty of the task which has so unwelcomely fallen upon us.” 43  The Supreme Court again balanced this respect and deference with the recognition that “[t] he constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by ‘the people of the United States.’” 44  The Supreme Court ruled that state courts were subject to its appellate jurisdiction on constitutional matters. By 1816, the Supreme Court had declared that it could overrule state courts and invalidate unconstitutional state laws.

That same year, Congress chartered the Second Bank of the United States, a private corporation that handled all fiscal transactions for the federal government. Two years later, Maryland passed legislation to impose a tax on the Bank, which Bank employee James M’Culloch refused to pay. The Maryland state courts upheld the legality of the tax. In M’Culloch v. Maryland , 45  the Supreme Court made two critical rulings. First, it declared that the Necessary and Proper Clause of Article I, Section 8 of the Constitution granted Congress discretion in choosing the means by which to execute its enumerated powers: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” 46 Despite the absence of an enumerated power to incorporate, the Supreme Court held that creating the Bank was constitutional under Article I, Section 8 as “necessary and proper” to carry out Congress’s other enumerated powers. Second, the Court concluded that while Article I, Section 8 gave Congress the power to create the Bank, Article VI’s Supremacy Clause meant that Maryland lacked the power to tax that Bank. “The government of the Union, though limited in its powers, is supreme within its sphere of action . . . and its laws, when made in pursuance of the constitution, form the supreme law of the land.” 47

In 1824, one of the most significant cases on congressional powers came before the Supreme Court. Gibbons v. Ogden 48  involved competing steamboat ferry owners whose vessels operated in the waters between New York and New Jersey. Ogden obtained an exclusive license from the State of New York authorizing him to operate along the contested route and sought an injunction to stop Gibbons from operating along the same route. In response, Gibbons argued that a 1793 act of Congress regulating coastal commerce allowed him to compete with Ogden. He lost in the trial and appellate courts in New York, but the Supreme Court reversed. The Court’s decision for Gibbons rested on its first interpretation of the Commerce Clause, which provides that “Congress shall have power . . . [t]o regulate commerce . . . among the several States . . . .” 49

The Court found that the word “commerce” included navigation among the states, and the word “among” before the phrase “the several States” meant that Congress’s commerce power did not “stop at the external boundary line of each State, but may be introduced into the interior.” 50 The New York law granting Ogden an exclusive license was a “nullity” in light of Congress’s conflicting act and the Constitution’s Supremacy Clause. 51 Gibbons significantly expanded the authority of the federal government by recognizing Congress’s broad power to regulate commercial activity. By the Civil War, the federal courts had established several key principles of federalism, including the power of federal courts to invalidate unconstitutional state laws, to nullify conflicting state-court rulings, and to ensure the supremacy of federal law enacted within the enumerated powers the Constitution delegated to the federal government. Nonetheless, during this period, the federal government remained small and had little impact on the lives of most citizens. Most Americans identified more with their states than with the nation.

The Civil War and Reconstruction

Civil war: federalism in crisis.

The Civil War threatened the survival of the American experiment. Could states legitimately claim a right to secede from the nation? President Lincoln vehemently opposed the idea. “Plainly, the central idea of secession, is the essence of anarchy.” 52   There was the bond of geography: “Physically speaking, we cannot separate.” 53 And there was the bond of the constitution itself: “[N]o State, upon its own mere motion, can lawfully get out of the Union.” 54 Secessionists strongly disagreed. Future Confederate President Jefferson Davis, announcing his departure from the United States Senate following Mississippi’s decision to secede, declared: “I have for many years advocated, as an essential attribute of State sovereignty, the right of a State to secede from the Union.” 55

  He explained:

Secession belongs to a different class of remedies. It is to be justified upon the basis that the States are sovereign. There was a time when none denied it. I hope the time may come again, when a better comprehension of the theory of our Government, and the inalienable rights of the people of the States, will prevent any one from denying that each State is a sovereign, and thus may reclaim the grants which it has made to any agent whomsoever. 56

The South’s defeat in the Civil War greatly expanded the power of the federal government and “destroyed the doctrine that the Constitution was a compact among sovereign states, each with the right to interpose or nullify an act of Congress, and each with the ultimate right to secede legally from the Union.” 57   Under modern conceptions of federalism, states retain sovereignty. The Civil War, however, removed any doubt that the federal government — which derives its sovereign power from “the People,” not the states — is supreme when acting within the scope of its enumerated powers. “The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals, and for other constitutional ends.” 58

Post Civil War: Reconstructing Federalism

When the Civil War ended, the country entered “Reconstruction,” a period that included rebuilding the roles of the federal and state governments. There was significant disagreement in the country about how to treat the former Confederate states, implicating whether the basic relationship between the federal and state governments that existed before the War was to be restored, or whether it was necessary to make fundamental alternations in that relationship to prevent the continuation of the causes of the conflict.

Ultimately, three constitutional amendments, commonly referred to as the Reconstruction Amendments, were ratified in the five years after the Civil War ended, altering the balance of federalism in America. The Thirteenth Amendment abolished slavery 59   and the Fifteenth Amendment guaranteed African Americans the right to vote. 60   The Fourteenth Amendment imposed substantial restrictions on state power and expanded the power of the federal government. 61

Section 1 of the Fourteenth Amendment, which overruled the Supreme Court’s 1857 ruling in Dred Scott v. Sandford 62  holding that African Americans were not entitled to any of the rights of citizenship, provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside” and prohibits states from passing any law that abridges “the privileges or immunities of citizens of the United States.” 63  The breadth and meaning of the phrase “privileges or immunities” remains uncertain. One theory is that the phrase was intended to be limited to certain natural rights, such as property ownership. Others argue that the phrase was intended to extend to all positive law, whether provided by state law or the Bill of Rights. 64  However, “the standard view of the effect intended by the drafters of the Privileges or Immunities Clause seems to be that it ‘has been a mystery since its adoption.’” 65

Section 1 of the Fourteenth Amendment also prohibits the states from depriving “any person of life, liberty, or property, without due process of law,” or “deny[ing] to any person within its jurisdiction the equal protection of the laws.” 66 The Due Process Clause has since been interpreted to incorporate almost all of the provisions of the Bill of Rights against the states, 67 and the Due Process and Equal Protection Clauses have since been interpreted to restrict or bar state regulation in diverse areas, including contraception, 68  abortion, 69  and same-sex marriage. 70 Significantly, Section 5 of the Fourteenth Amendment grants Congress the power to enforce the Fourteenth Amendment, providing a potentially broad grant of federal power.

The restriction of state sovereignty was a principal basis for the opposition to the Fourteenth Amendment, as reflected in a published letter of Interior Secretary Orville Browning that President Andrew Johnson — a Reconstruction opponent — reportedly approved:

The object and purpose are manifest. It is to subordinate the State judiciaries in all things to Federal supervision and control; to totally annihilate the independence and sovereignty of State judiciaries in the administration of State laws, and the authority and control of the States over matters of purely domestic and local concern. . . . [I]f adopted, every matter of judicial investigation, civil or criminal, however insignificant, may be drawn into the vortex of the Federal judiciary. 71

Supporters of the Fourteenth Amendment found Browning’s attack to be little more than the same states’ rights argument that had led to, and been defeated by the Union’s victory in, the Civil War:

In a few words the great fear of Mr. Browning is that this amendment in its operation will do away with State sovereignty, legislative and judicial, and will put the legislatures and courts of the several States under Congress and the federal courts . . . . We hold that this old Southern theory of our government was demolished at Petersburg and surrendered at Appomattox Court House with Lee’s army; and so we dismiss this branch of the argument. 72 The Fourteenth Amendment was ratified in July 1868. By 1870, however, support for a very strong version of Reconstruction had begun to wane. As part of this trend, the Supreme Court narrowly interpreted the Privileges or Immunities Clause when it first addressed the Fourteenth Amendment in the Slaughter-House Cases . 73  These cases concerned a Louisiana law permitting only one slaughterhouse in the New Orleans area, ostensibly to promote health and safety. Competing butchers were allowed to slaughter, but only at the approved slaughterhouse. Critics contended that the state law unconstitutionally deprived the other butchers of the “privilege” of practicing their profession, violating their “privileges or immunities” under the Fourteenth Amendment.

The Supreme Court ruled that the Privileges or Immunities Clause protected the privileges of United States citizenship but did not require the states to grant its citizens any particular privileges. The Court stressed that it considered these questions as vital to federalism and therefore to the nation:

No questions so far-reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States, and of the several States to each other and to the citizens of the States and of the United States, have been before this court during the official life of any of its present members. 74 The Court analyzed the historical underpinnings of the Fourteenth Amendment, emphasizing the “pervading purpose” of the Reconstruction Amendments as freeing the slaves, securing that freedom, and protecting the new freemen from oppression. The Court refused to interpret the Privileges or Immunities Clause as a dramatic general reworking of the federal-state balance:

The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted, shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking out of the late civil war. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government.

Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National government. But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights — the rights of person and of property — was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation.

But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this court, so far as its functions required, has always held with a steady and an even hand the balance between State and Federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution, or of any of its parts. 75 The Equal Protection Clause of Section 1 of the Fourteenth Amendment was effectively nullified when the Supreme Court ruled in 1896 that “separate, but equal facilities” were constitutional in Plessy v. Ferguson , authorizing state-sanctioned segregation. 76  It was not until 1954 that the Supreme Court reversed that decision in Brown v. Board of Education , ruling that “separate educational facilities are inherently unequal.” 77

Progressive Era: Federalism Grows

Rapid industrialization in the late nineteenth and early twentieth centuries raised a variety of economic and social issues that in turn produced a series of political reforms. This period has been described as characterized by a “growing conviction that government at all levels ought to intervene in the socioeconomic order to enact antitrust and regulatory legislation, labor and welfare measures, and tax reform.” 78   The nation adopted several constitutional amendments, including the Sixteenth, which authorized direct federal income taxes, and the Seventeenth, which provided for the citizens in each state to elect their senators directly rather than through their state legislatures. Federal power continued to expand and become entrenched.

The Sixteenth Amendment: Taxation

The Sixteenth Amendment, ratified on Feb. 3, 1913, is considered the first Progressive Era constitutional amendment. In 1895, in Pollock v. Farmers’ Loan & Trust Company , 79   the Supreme Court had invalidated a federal income tax as an unconstitutional direct tax because it was not apportioned to the states based on their respective populations. The Sixteenth Amendment overturned this ruling. 80 Some opponents saw this as a federal “power grab” designed to further weaken the states:

A hand from Washington will be stretched out and placed upon every man’s business; the eye of the federal inspector will be in every man’s counting house. . . . An army of Federal inspectors, spies and detectives will descend upon the state. . . . I do not hesitate to say that the adoption of this amendment will be such a surrender to imperialism that has not been since the Northern states in their blindness forced the fourteenth and fifteenth amendments upon the entire sisterhood of the Commonwealth. 81 Following the Sixteenth Amendment, the federal government began using its expanded resources to pass legislation approving federal funding for social welfare programs, including the 1921 Sheppard Towner Act to fund child and maternity care, described as the “first venture of the federal government into social security legislation.” 82   Over time, the Sixteenth Amendment significantly impacted the balance of federal-state power. Together with an expansive interpretation of the congressional spending power, the taxing power permitted the substantial growth of the federal government in myriad areas it previously had not occupied or regulated.

The Seventeenth Amendment: Direct Election of Senators

The Seventeenth Amendment, adopted on May 31, 1913, provided for the voters of each state to elect their Senators directly, rather than having state legislatures select them. This abrogated one of the original, fundamental structural protections for the states by affording direct state influence over the operations of the federal government.

Incorporating the Bill of Rights

The Reconstruction Amendments profoundly impacted the federal-state balance by applying the Bill of Rights through the Fourteenth Amendment (“incorporating” the Bill of Rights in the Fourteenth Amendment) to limit or invalidate state action. Before the Civil War, the Supreme Court held that the Bill of Rights did not apply to the states. In 1833 the Supreme Court ruled in Barron v. City of Baltimore 83   that the Constitution’s Fifth Amendment prohibition against government confiscation of property without just compensation was a limit only on the power of the federal government. “Had the people of the several States, or any of them, required changes in their Constitutions; had they required additional safeguards to liberty from the apprehended encroachments of their particular governments; the remedy was in their own hands, and could have been applied by themselves.” 84   Years after the Civil War, in 1875, the Court ruled that the First Amendment right to free assembly and the Second Amendment right to bear arms did not apply to the states. 85

  In so holding, the Court emphasized the existence of more than one sovereign in the federal system:

We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other. 86

This changed over time, as the Supreme Court slowly applied specific protections afforded by the Bill of Rights to the states. The Court relied on the commandment in the Fourteenth Amendment’s Due Process Clause that no state may “deprive any person of life, liberty or property, without due process of law.” In 1925, the Supreme Court used the Clause to apply the First Amendment to the states. In Gitlow v. New York , 87   the Court stated: “For present purposes we may and do assume that freedom of speech and of the press — which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” 88   In 1931, the Supreme Court relied on the Clause to remove any doubt that the First Amendment rights of freedom of the press applied to the states 89   and, in another case, to recognize that a defendant’s right to legal representation in capital cases applied to the states. 90 As recently as 2010, the Court recognized that the Second Amendment applies to the states through the Fourteenth Amendment, restricting the states’ ability to regulate gun ownership. 91

Expanding Federal Power: The New Deal

After his election in 1933, President Franklin Roosevelt initiated a series of economic and regulatory programs to address the Great Depression. Congress passed the National Industrial Recovery Act, authorizing the promulgation of fair competition codes. The Roosevelt administration adopted a series of these codes, including one governing the poultry industry. That led to the Schechter Poultry Corporation case, invalidating the legislation as exceeding constitutional limits on federal powers.

The Schechter Poultry Corporation was charged with violating the Live Poultry Code. Schechter sued, claiming that the federal government had exceeded its authority by issuing the code. The Supreme Court agreed, holding that Article I of the Constitution vested the Congress, not the President, with the power to legislate, and the National Industrial Recovery Act unconstitutionally authorized the President to do so. The Court also held that the Code regulated intrastate commerce, making the Code unconstitutional because the Commerce Clause authorized Congress to regulate only interstate commerce. 92 Between 1933 and 1936, the Supreme Court invalidated other pieces of New Deal legislation. In 1936, buoyed by his landslide reelection, President Roosevelt proposed a plan that would reshape the Court, allowing him to select additional justices who would approve his policies. Dubbed “court packing” by his critics, his plan was opposed even by some of his fervent supporters. It was never enacted, in part because the Supreme Court began approving Roosevelt’s New Deal legislation. 93   A series of decisions gradually recognized the Commerce Clause as providing constitutional authorization for expanding federal government power.

In 1937, the Supreme Court ruled in NLRB v. Jones & Laughlin Steel Corporation 94   that Congress may regulate isolated economic activities, like labor relations, under the Commerce Clause, because that activity has a “close and substantial relationship” to interstate commerce. In United States v. Darby , 95   the Court found the Fair Labor Standards Act constitutional under the Commerce Clause, barring states from enacting lower standards to obtain a commercial advantage over other states. In Wickard v. Filburn , 96   the Supreme Court declared that the Commerce Clause empowered federal regulation of wheat grown by a farmer for his own use, on his own farm, that never crossed state lines, because of its effect on interstate commerce. “A new era of judicial construction had been launched” and “[a]reas of authoritative action that previously had been left to the states’ sphere of sovereignty or to the private sector now fell within the powers of Congress.” 97

Federalism Today

How America interprets the balance of federal and state power has changed over two hundred years. Those changes reflect, and helped us survive, challenges that almost destroyed the nation. How best to strike that balance continues to pervade critical aspects of modern American government, including healthcare, race, civil liberties, the environment, and foreign policy. 98 Federalism also directly affects tax policy, 99   elections, 100 and domestic relations. 101 Yet more than 200 years after the nation’s founding, fundamental questions implicating federalism remain unsettled. That is nowhere more apparent than in the Supreme Court’s June 2015 decision on same-sex marriage, Obergefell v. Hodges . 102

Historically, the view had been that “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the States and not the laws of the United States.” 103   Over time, Supreme Court decisions began to recognize limitations on the states’ traditional power to regulate marriage. In Loving v. Virginia , 104   for example, the Supreme Court applied the Fourteenth Amendment to overturn a Virginia prohibition on interracial marriage. In Kirchberg v. Feenstra , 105   the Court similarly applied the Fourteenth Amendment to strike down state laws deeming the husband “head and master” of the household.

The Supreme Court initially declined to apply Fourteenth Amendment principles to state restrictions on same-sex marriage. The first time the Supreme Court addressed same-sex marriage, it issued a “one-line summary decision . . . in 1972, holding the exclusion of same-sex couples from marriage did not present a substantial federal question.” 106 As recently as two years ago, in United States v. Windsor , 107 the Supreme Court relied on the states’ primacy in domestic relations to strike down a congressional attempt to define marriage as “a legal union between one man and one woman as husband and wife” for purposes of federal statutory law. 108   This year, however, the Court held in Obergefell that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.” 109   The definition of marriage is no longer the exclusive province of the states. 110 Recent jurisprudence under the Second Amendment, addressing the right to bear arms, presents another example of the fluid nature of American federalism. For years, states were thought to have virtually unbridled authority to regulate the ownership, possession and use of firearms within their borders. That understanding changed dramatically in a short period. In 2008, the Supreme Court held in District of Columbia v. Heller 111   that the Second Amendment conferred an individual right to keep and bear arms, precluding the District of Columbia from banning handguns in the home and requiring firearms to be kept inoperable at all times. Subsequently, in McDonald v. City of Chicago , 112   the Court ruled that the Second Amendment applies to the states through the doctrine of incorporation. Together, Heller and McDonald dramatically altered firearms regulation by prohibiting the states from banning handgun possession outright, and by circumscribing the states’ ability to regulate firearms to an extent that remains to be determined.

In addition to these examples, Commerce Clause jurisprudence continues to present a source of contested but expansive federal power, with uncertain scope. In 2000, for example, the Supreme Court ruled in United States v. Morrison 113   that the federal Violence Against Women Act’s civil remedy for victims of gender-motivated violence exceeded congressional power under the Commerce Clause. By contrast, in 2005, the Court concluded in Gonzales v. Raich 114   that federal criminalization of intrastate marijuana growers and users did not violate the Commerce Clause. Perhaps most notably, in National Federation of Independent Business v. Sebelius , 115   the Court held that the Patient Protection and Affordable Care Act was constitutional under Congress’s power to tax, but was not a proper use of the Commerce Clause power because although the federal government can regulate interstate commerce, it cannot compel it. 116 Recent interpretations of the Supremacy Clause also illustrate some of the shifting contours of federalism. Under the preemption doctrine, when Congress acts within the scope of its enumerated powers, or a federal agency acts within the scope of its statutory mandate, their action may preempt conflicting state laws or, if federal action is sufficiently pervasive, may even bar state regulation within that field. 117   Over the past decade, state laws have been held preempted under this doctrine in such divergent areas as aviation, 118   food and drug regulation, 119   immigration, 120   trucking 121   and locomotive equipment, 122   arbitration agreements, 123   regulation of emissions, 124   state age-verification requirements for the shipment and delivery of tobacco, 125   and even the treatment and processing nonambulatory animals in a slaughterhouse. 126   At the same time, preemption has been denied in multiple other contexts. 127

As this discussion suggests, the only safe prediction about the future of American federalism is that none can be made with certainty. But while the interpretation of the balance of federal and state power has changed from the colonial period to the present, federalism continues to be a foundational principle defining America and a principal tool used to build its government.

The Supreme Court continues to look to the Framers for guidance in resolving important questions raising federalism issues or implicating federalism concerns. In District of Columbia v. Heller , 128   for example, the Court noted that “[d]uring the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.” 129   The Court echoed the concerns America’s founders had over 200 years ago about the danger to democracy posed by the new federal government. “But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right — unlike some other English rights — was codified in a written Constitution.” 130

As the nation has grown and become established, so have both federal and state power. That path has been neither smooth nor linear. Dispute and even armed conflict have marked the way. But throughout, the Constitution has served as the source of federal and state government powers and their limits. The courts continue to be the first, and often last, arbiters of the struggle to define both. That has worked so far, although far from perfectly or, at times, even well. But no one has devised an alternative approach, much less a better way.

The problems of federalism, like many aspects of the work judges across legal systems confront, are real. A great judge and legal scholar, Benjamin Kaplan of Massachusetts, described one aspect of why judges’ work is so difficult and so compelling. Rules and principles, however long established and seemingly clear, cannot “solve [the] problems fully and forever. If the problems are real ones, they can never be solved. We are merely under the duty of trying continually to solve them.” 131

The judiciary has many grave responsibilities. Shaping and protecting federalism continue to be among the most important and enduring of those obligations. It is a responsibility and a joy that we in the United States and the United Kingdom share.

Related Reading: The Emergence of the American Constitutional Law Tradition

• Alexis de Tocqueville, Democracy in America ch. II (Henry Reeve trans., Bantam Classics 2004) (1835).
• Alison L. LaCroix, The Ideological Origins of American Federalism 21 (2011).
• Articles of Confederation of the New England Confederation of 1643.
• LaCroix,  supra  note 2, at 21–22.
• Albany Plan of Union of 1754, http://avalon.law.yale.edu/18th_century/albany.asp
• Georgia and Delaware (then part of Pennsylvania) were also omitted.
• Letter from Benjamin Franklin to Peter Collinson, The Papers of Benjamin Franklin (May 28, 1754), http://franklinpapers.org .
• John Witherspoon made this point succinctly in a July 30, 1776, debate with Benjamin Franklin: “We all agree that there must and shall be a Confederation, for this War. It will diminish the Glory of our Object, and depreciate our Hope. It will damp the Ardor of the People. The greatest danger We have is of Disunion among ourselves.” Notes of Debates in Congress (1776),  in  1 Classics of American Political and Constitutional Thought: Origins through the Civil War 303 (Scott J. Hammond et al. eds., 2007).
• LaCroix,  supra  note 2, at 128.
• See  Articles of Confederation and Perpetual Union of 1777 (ratified Mar. 1, 1781), http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=127.
• Larry N. Gerston, American Federalism: A Concise Introduction 24 (2007).
• Gaillard Hunt, The Life of James Madison 93–94 (1902).
• U.S. Term Limits, Inc. v. Thornton , 514 U.S. 779, 838 (1995) (Kennedy, J., concurring).
• Alison L. LaCroix,  The Authority for Federalism: Madison’s Negative and the Origins of Federal Ideology , 28 L. & Hist. Rev. 451, 452 (2010).
• See  U.S. Const. art. I, § 8, cl. 1, 3, 4, 10–13.
• U.S. Const. art. I, § 8, cl. 3.
• See United States v. Lopez , 514 U.S. 549, 553–54 (1995); Randy E. Barnett,  The Original Meaning of the Commerce Clause , 68 U. Chi. L. Rev. 101 (2001).
•   See, e.g. ,  Gonzales v. Raich , 545 U.S. 1, 15–21 (2005) (“Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”).
• U.S. Const. art. I, § 8, cl. 1.
• Robert G. Natelson,  The General Welfare Clause and the Public Trust: An Essay in Original Understanding , 52 U. Kan. L. Rev. 1, 3 (2003).
• Id . at 3–10.
• See infra  p. 28 (discussion of the Patient Protection and Affordable Care Act).
• U.S. Const. art. I, § 8, cl. 18.
• The Federalist No. 9 (Alexander Hamilton).
• The Federalist No. 51 (Alexander Hamilton).
• The Federalist Nos. 26, 31 (Alexander Hamilton).
• The Federalist No. 39 (James Madison).
• The Federalist No. 45 (James Madison).
• Letter from Robert Yates and John Lansing to George Clinton, Governor of New York (Dec. 21, 1787), http://www.constitution.org/afp/yatesltr.htm.
• Letter from Brutus to the Citizens of the State of New York (Oct. 18, 1787), http://www.constitution.org/afp/brutus01.htm.
• Joseph Story, Commentaries on the Constitution 3:§ 1898 (1833), http://press-pubs.uchicago.edu/founders/documents/amendIXs9.html.
•   Id . at § 1900.
• See  U.S. Const. art. VII. The remaining four of the original thirteen states completed ratification of the Constitution by May 29, 1790.
• Gerston,  supra  note 11, at 6 (quoting Leslie Lipson, The Democratic Civilization 143 (1964)).
• Tocqueville,  supra  note 1, at ch. VIII.
• 10 U.S. 87 (1810).
• Id.  at 134.
• 14 U.S. 304 (1816).
• 11 U.S. 603 (1812).
• Martin , 14 U.S. at 323.
• Id.  at 324.
• 17 U.S. 316 (1819).
• Id.  at 421.
•   Id.  at 405–06.
• 22 U.S. 1 (1824).
• U.S. Const. art. I, § 8.
• Gibbons , 22 U.S. at 194.
• Id.  at 210.
• Abraham Lincoln Inaugural Address (Mar. 4, 1861), http://www.abrahamlincolnonline.org/lincoln/speeches/1inaug.htm.
• Letter from Jefferson Davison to the United States Senate (Jan. 21, 1861), http://jeffersondavis.rice.edu/Content.aspx?id=87.
• David B. Walker, The Rebirth of Federalism: Slouching toward Washington 74 (2d ed. 2000).
• New York v. United States , 505 U.S. 144, 181 (1992).
• U.S. Const. amend. XIII (“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”).
• U.S. Const. amend. XV (“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”).
• U.S. Const. amend. XIV.
• 60 U.S. 393 (1857).
• U.S. Const. amend. XIV, § 1.
• See  Note,  Congress’s Power to Define the Privileges and Immunities of Citizenship , 128 Harv. L. Rev. 1206, 1207 (2015) (citations omitted).
• John Harrison,  Reconstructing the Privileges or Immunities Clause , 101 Yale L.J. 1385, 1387 n.5 (1992) (citing Robert H. Bork, The Tempting of America 166 (1989)).
• See, e.g. ,  McDonald v. City of Chicago , 561 U.S. 742, 750 (2010).
• Griswold v. Connecticut , 381 U.S. 479 (1965);  Eisenstadt v. Baird , 405 U.S. 438 (1972).
• Roe v. Wade , 410 U.S. 113, 164 (1973);  Planned Parenthood v. Casey , 505 U.S. 833 (1992).
• Obergefell v. Hodges , 135 S. Ct. 2584 (2015).
• John E. Nowak,  The Scope of Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments , 75 Colum. L. Rev. 1413, 1457–58 (1975) (citing The Cincinnati Commercial, Oct. 26, 1866, at 2, col. 4).
• Id.  at 1462–63 (citing New York Herald, Oct. 25, 1866, at 6, col. 4).
• 83 U.S. 36 (1872).
• Id.  at 67.
• Id.  at 82.
• 163 U.S. 537 (1896).
• 347 U.S. 483, 495 (1954).
• John D. Buenker,  The Ratification of the Federal Income Tax Amendment , 1 Cato J. 183, 184 (1981).
• 57 U.S. 429 (1895).
• Buenker,  supra  note 78, at 185.
• Roy G. Blakey & Gladys C. Blakey, The Federal Income Tax 70 (The Lawbook Exchange Ltd., 2006) (quoting Richmond Times-Dispatch, Mar. 3, 1910).
• J. Stanley Lemons,  The Sheppard-Towner Act: Progressivism in the 1920s , 55 J. Am. Hist. 776, 776 (1969).
• 32 U.S. 243 (1833).
• Id.  at 249.
• United States v. Cruikshank , 92 U.S. 542 (1875).
• Id.  at 549.
• 268 U.S. 652 (1925).
• Id.  at 666.
• Near v. Minnesota , 283 U.S. 697, 707 (1931) (“It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.”).
• Powell v. Alabama , 287 U.S. 45 (1932).
• McDonald v. City of Chicago , 561 U.S. 742 (2010).
• A.L.A. Schechter Poultry Corp. v. United States , 295 U.S. 495 (1935).
• Walker,  supra  note 57, at 92.
• 301 U.S. 1, 37 (1937).
• 312 U.S. 100 (1941).
• 317 U.S. 111 (1942).
• In 2011, the Supreme Court held that the federal government’s attempt to prosecute a woman who tried to poison her husband’s mistress pursuant to the Chemical Weapons Treaty could be challenged on the grounds that it violated the Tenth Amendment and basic principles of federalism: “States are not the sole intended beneficiaries of federalism. . . . An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States . . . . Fidelity to principles of federalism is not for the States alone to vindicate.”  Bond v. United States , 131 S. Ct. 2355, 2364 (2011).
• Neb. Dep’t of Revenue v. Loewenstein , 513 U.S. 123 (1994).
• Perry v. Perez , 132 S. Ct. 934 (2012).
• Rose v. Rose , 481 U.S. 619 (1987).
• 135 S. Ct. 2584 (2015).
• In re Burrus , 136 U.S. 586, 593–94 (1890).
• 388 U.S. 1 (1967).
• 450 U.S. 455 (1981).
• Obergefell , 135 S. Ct. at 2598 (citing  Baker v. Nelson , 409 U.S. 810 (1972)).
• 133 S. Ct. 2675 (2013).
• Id.  at 2683, 2691–92.
• Obergefell , 135 S. Ct. at 2604.
• The dissents in  Obergefell  emphasized the federalism implications of the Court’s decision.  See id.  at 2611 (Roberts, J., dissenting) (“Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.”);  id.  at 2643 (Alito, J., dissenting) (“The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not . . . . The majority today makes that impossible.”).
• 554 U.S. 570 (2008).
• 561 U.S. 742 (2010).
• 529 U.S. 598 (2000).
• 545 U.S. 1 (2005).
• 132 S. Ct. 2566 (2012).
• In dissent, four justices maintained that the Commerce Clause supplied the necessary Congressional power, emphasizing federalism issues.  See id.  at 2615 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part) (“The Commerce Clause, it is widely acknowledged, ‘was the Framers’ response to the central problem that gave rise to the Constitution itself.’ . . . Under the Articles of Confederation, the Constitution’s precursor, the regulation of commerce was left to the States. This scheme proved unworkable . . . . The Framers’ solution was the Commerce Clause, which, as they perceived it, granted Congress the authority to enact economic legislation ‘in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.’”) (citations omitted);  see also id.  at 2609 (“Since 1937, our precedent has recognized Congress’ large authority to set the Nation’s course in the economic and social welfare realm . . . . The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.”).
• See Oneok, Inc. v. Learjet, Inc. , 135 S. Ct. 1591, 1594–95 (2015).
• See Northwest, Inc. v. Ginsberg , 134 S. Ct. 1422 (2014).
• See PLIVA, Inc. v. Mensing , 131 S. Ct. 2567 (2011).
• See Arizona v. United States , 132 S. Ct. 2492 (2012).
• See Am. Trucking Ass’ns, Inc. v. City of Los Angeles , 133 S. Ct. 2096 (2013).
• See Kurns v. R.R. Friction Prods. Corp. , 132 S. Ct. 1261 (2012).
•   See Marmet Health Care Ctr., Inc. v. Brown , 132 S. Ct. 1201 (2012).
• See Am. Elec. Power Co. v. Connecticut , 131 S. Ct. 2527 (2011).
• See Rowe v. N.H. Motor Transport Ass’n. , 552 U.S. 364 (2012).
• See Nat’l Meat Ass’n v. Harris , 132 S. Ct. 965 (2012).
• See, e.g., Oneok, Inc. v. Learjet, Inc. , 135 S. Ct. 1591, 1591 (2015) (state antitrust claims arising from natural gas pricing);  CTS Corp. v. Waldburger , 134 S. Ct. 2175 (2014) (state statutes of repose in certain environmental cases);  Chadbourne & Parke LLP v. Troice , 134 S. Ct. 1058 (2013) (state law class action arising from bank certificates of deposit).
• Id.  at 598.
• Id.  at 599.
• Benjamin Kaplan,  A Prefatory Note , 10 B.C. Indus. & Com. L. Rev. 497, 500 (1969).

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• Saving Our Profession: It’s Up to Us
• Judicial Excellence after Earl Warren
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• Lastly: A Judge Honors the Activist Who Brought Her to Jail
• As I See It: Updates from the Center for Judicial Studies
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• Editor’s Note: Relentlessly Relevant

About Lee Rosenthal

Lee Rosenthal is chief judge of the U.S. District Court for the Southern District of Texas. She serves as vice president of the American Law Institute and as a member of the Bolch Judicial Institute Advisory Board.

About Gregory P. Joseph

Gregory P. Joseph, partner at Joseph Hage Aaronson LLC, is a past president of the American College of Trial Lawyers; former chair of the American Bar Association Section of Litigation; and a former member of the Advisory Committee on the Federal Rules of Evidence.

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Federalism and its kindred terms (e.g., “federal”) are used, most broadly, to describe the mode of political organization that unites separate polities into an overarching political system so as to allow each to maintain its fundamental political integrity. Federal systems do this by distributing power among general and constituent governments in a manner designed to protect the existence and authority of all the governments. By requiring that basic policies be made and implemented through negotiation in some form, it enables all to share the system’s decision making and decision-making processes.

• 1.1 Social and Political Principle
• 1.2 Federation and Confederation
• 1.3 Federalism and Related Systems
• 1.4 Mature and Emergent Federal Systems
• 1.5 Federalism and Intergovernmental Relations
• 2.1 Written Constitution
• 2.2 Noncentralization
• 2.3 Areal Division of Power
• 2.4 Maintaining Union
• 2.5 Maintaining Noncentralization
• 2.6 Maintaining the Federal Principle
• 2.7 The End Product
• 3.1 Ancient Protofederal Systems
• 3.2 Medieval Experiments
• 3.3 First Modern Formulations
• 3.4 Modern Federalism
• 3.5 The Contemporary Study of Federalism
• 4.1 Daniel J. Elazar

DIFFERENT CONCEPTIONS

No single definition of federalism has proved satisfactory to all students, primarily because of the difficulties in relating theoretical formulations to the evidence gathered from observing the actual operation of federal systems. Attempts at definition have also foundered on the problems of distinguishing between (1) the federal principle as a broad social concept and federalism as a narrower political device, (2) two classic but different conceptions of federalism, (3) authentically federal systems and political systems that utilize elements of the federal principle, (4) mature and emergent federal systems, and (5) federalism and “intergovernmental relations” as distinct political phenomena.

Social and Political Principle

Federalism, conceived in the broadest social sense, looks to the linkage of people and institutions by mutual consent, without the sacrifice of their individual identities, as the ideal form of social organization. First formulated in the covenant theories of the Bible (Kaufman 1937–48), this conception of federalism was revived by the Bible-centered “federal” theologians of seventeenth-century Britain and New England (Miller [1939] 1961), who coined the term “federal”—derived from the Latin foedus (covenant)—in 1645 to describe the system of holy and enduring covenants between God and man that lay the foundation of their worldview. This conception of federalism was given new theoretical form by nineteenth-century French and German social theorists. Closely related to the various theories of social contract, it is characterized by the desire to build society on the basis of coordinative rather than subordinative relationships and by the emphasis on partnership among parties with equal claims to legitimacy who seek to cultivate their diverse integrities within a common social order (Boehm 1931).

As a political device, federalism can be viewed more narrowly as a kind of political order animated by political principles that emphasize the primacy of bargaining and negotiated coordination among several power centers as a prelude to the exercise of power within a single political system, and that stress the value of dispersed power centers as a means for safeguarding individual and local liberties. This means, in effect, that political institutions common to different political systems, when combined within a federal system and animated by federal principles, are effectively endowed with a distinctive character. For example, while political parties are common in modern political systems, parties animated by the federal principle show unique characteristics of fragmentation and a lack of central discipline that increase the power of local groups within the system as a whole (Grodzins 1960a).

Federation and Confederation

Federal ideas have been systematically conceptualized in two different ways. On the one hand, federalism has been conceived as a means to unite a people already linked by bonds of nationality through the distribution of political power among the nation’s constituent units. In such cases, the polities that constitute the federal system are unalterably parts of the national whole, and federalism invariably leads to the development of a strong national government operating in direct contact with the people it serves, just as the constituent governments do. On the other hand, federalism has also been conceived as a means to unify diverse peoples for important but limited purposes, without disrupting their primary ties to the individual polities that constitute the federal system. In such cases the federal government is generally limited in its scope and powers, functioning through constituent governments that retain their plenary autonomy, and to a substantial degree is dependent upon them.

Both conceptions of federalism have evolved from early federal experiments. The principles of strong national federalism were first applied by the ancient Israelites, beginning in the thirteenth century B.C., to maintain their national unity through linking their several tribes under a single national constitution and at least quasi-federal political institutions (Bright 1959). Several centuries later, the Greek city-states experimented with federal-style institutions as means for the promotion of intranational harmony and cooperation, primarily for defensive purposes, through associations (e.g., the Achaean League) that came close to what were later defined as confederations (Freeman [1863] 1893). A modified form of the Greek view was developed by the sixteenth-century theorists (Gierke [1913] 1934). They held that federalism meant a permanent league of states united through a perpetual covenant, binding under international law, in which the constituent states delegated enumerated powers to a general government while retaining full rights of internal sovereignty.

However, when the American system—the prototype of modern federal systems—emerged in the late eighteenth century, its architects developed a conception of federalism much like that of ancient Israel. From the first, American federalism functioned to serve a people with a single national identity and was constituted with a strong national government to serve that people on a national basis, though, as late as 1789, The Federalist could describe the new American Constitution as “partly national and partly federal” in deference to the then-accepted views. The successful efforts of the supporters of the Constitution to appropriate the term “federalist” for their own use (Main 1961, ix–xi) restored to common usage the older conception of federalism as a noncentralized national union bound by municipal law, with a general government superior to the governments of the constituent states (Diamond 1963).

Just as the American system became the prototype for other modern federal systems, so the American conception of federalism became the generally accepted one. The other conception was ultimately subsumed under the word “confederation” and its kindred terms. The two systems described by these different conceptions reflect, in part, the distinctions implied in the German Staatenbund (confederation) and Bundesstaat (federation), terms developed in the mid-nineteenth century (Mogi 1931). A certain degree of confusion remains because the terms invented to describe both systems were used indiscriminately for many years.

Though the American conception of federalism is today almost universally accepted as the most accurate usage, the confederal conception remains a living and legitimate aspect of the federal idea in its largest political sense. Today, the latter is most prominent among certain advocates of limited European union (the Common Market exemplifies a confederal form) and among many so-called world federalists .

Federalism and Related Systems

Federal systems are often confused with four other forms of political order that make use of specific federal principles. The use of some federal principles in multiple monarchies, legislative unions, empires, and decentralized unitary systems can have important consequences similar to those in authentically federal systems. But the fact that such principles do not permeate the four systems makes the distinctions between them and true federations extremely important. Federal systems differ from multiple (or dual) monarchies in two essential ways. The central constitutional characteristic of the multiple monarchy is that union exists only in the person of the sovereign and is maintained only through the exercise of executive power in the sovereign’s name. No significant common institutions exist to unite the constituent polities—no common legislatures, no common legal system, and little in the way of a common political substructure. On the contrary, each constituent polity maintains its own political system, which the monarch guarantees to support under the terms of his or her compact with the realm. Multiple monarchies have historically been less than democratic regimes. Even where there have been tendencies toward democratization, the very fact that union exists only by virtue of the common sovereign has tended to elevate the position of the monarch to one of real power. Attempts to transfer sovereignty or the attributes of sovereignty elsewhere, by their very nature, stimulate the division of this kind of association of civil societies into separate polities. Thus, the Austro-Hungarian Empire was held together by the Hapsburg emperors and disintegrated when that family ceased to rule (Sharma 1953, ch. 7). The dual monarchy of Sweden and Norway ceased to function when democratic government was introduced, transferring the attributes of sovereignty from the monarch to the nation(s). In Spain, on the other hand, the inability of the Spaniards to transform a multiple monarchy into a federal system, in a locale that by nature demanded peninsular union of some sort, led to the consolidation of the constituent polities into something approximating a unitary state that remained highly unstable because of the local barriers to consolidation that could be neither accommodated nor eradicated (Elliott 1964).

Multiple monarchies have been transformed into stable and unified polities through legislative union. The United Kingdom is a case in point. The centrifugal tendencies of the seventeenth-century dual monarchy linking England and Scotland were finally eliminated through a legislative union of the two nations in 1707. Legislative union bears very close resemblance to federal union at several crucial points. Though designed to direct public allegiance to a single national authority, the terms of the union encourage the political system to retain certain noncentralizing elements. The government of the nation remains national rather than central in character, since it is created by a perpetual covenant that guarantees the constituent parties their boundaries, representation in the national legislature, and certain local autonomies, such as their own systems of municipal law. Legislative unions usually unite unequal polities. The centralizing tendencies induced by this are somewhat counterbalanced by the residual desire for local self-government in the constituent states. Thus, in the United Kingdom the cabinet has acquired a supremacy not foreseen in 1707, but within the framework of cabinet government Scotland has acquired a national ministry of its own with a separate administrative structure, based in Scotland, for most of its governmental programs (Milne 1957).

Federal systems also differ from empires allowing cultural home rule. Such empires have often been termed “federal”—in some cases because they claim to be. The Roman Empire was the classic example of this kind of political system in the ancient world, and the Soviet Union may well have been its classic modern counterpart. In both cases, highly centralized political authorities possessing a virtual monopoly of power decide, for reasons of policy, to allow local populations with different ethnic or cultural backgrounds to maintain a degree of cultural home rule, provided that they remain politically subservient to the imperial regime. While this often appears to offer a substantial degree of local autonomy, its political effects are purposely kept minimal. Any local efforts to transform cultural home rule into political power are invariably met with suppressive force from the central government, even to the point of revoking cultural rights, as examples from the history of both empires reveal.

Federal systems are clearly different from decentralized unitary states, even though such states may allow local governments considerable autonomy in some ways. In such states, local powers are invariably restricted to local matters, as determined by the central authorities, and are subject to national supervision, restriction, and even withdrawal, though tradition may mitigate against precipitous action by the central government in areas where local privileges have been established. Still, as the English experience has shown, even powerful traditions supporting local autonomy have not stood in the way of great reconcentration of power by democratically elected parliaments when such action has been deemed necessary by a national majority.

Mature and Emergent Federal Systems

Several studies (Macmahon 1955; Wheare [1946] 1964) have attempted to draw distinctions between mature and emergent federal systems. The thrust of their argument is that federalism, when used to unify separate political systems to form a new nation, and federalism as a form of decentralized government in an established nation encourage markedly different kinds of political behavior. In the former case, federalism serves as a means to bring tenuous unity to nations composed of highly autonomous polities, with the locus of power remaining among the constituent units. As federal systems mature, so the argument goes, power is increasingly concentrated at the center, and federalism remains only to promote a certain amount of decentralization within an otherwise highly unified political system. Wheare goes so far as to argue that federalism is a transitional phenomenon useful in promoting progressively larger polities, which are then gradually discarded (in fact, if not in form) as an unnecessary encumbrance. This argument may have some validity in describing the history of nonfederal political systems that have utilized federal principles to promote national unity. For example, it can be used to describe the evolution of the United Kingdom into its present constitutional state. It cannot be applied, however, to any of the three exemplary federal systems—Canada, Switzerland, and the United States. Their national ties existed from the first, and their national governments were granted broad powers at the outset. Nor has federalism declined in importance as those nations have matured. There are undoubtedly differences between mature and emergent federal systems, but those differences are more likely to relate to the character of conflict and negotiation between the general and constituent governments than to their relative strengths.

Federalism and Intergovernmental Relations

Because the study of federalism at its most immediately empirical level heavily stresses the study of intergovernmental relations, the two are often considered to be synonymous. Federalism, however, is something much more than the relationships between governmental units, involving as it does principles that are designed to establish the proper character of those relationships and that must also affect the character of other political institutions within federal systems. As already indicated, federalism concerns the way in which federal principles influence party and electoral systems in federal polities just as much as it concerns the way in which local governments relate to their regional or national ones, or to each other. Moreover, the study of intergovernmental relations exists apart from the study of federalism, since such relationships are to be found in all political systems, federal or otherwise, where there is more than one government extant within a given polity.

CHARACTERISTICS AND OPERATIONAL PRINCIPLES

The most useful way to attempt to understand federalism as a political phenomenon is to under—take a survey of the basic characteristics of federal systems, principles, and processes in order to understand both the manner and the direction of their development.

As a first step, it seems necessary to identify the various federal systems that exist today or have existed in the past; only then can we analyze them as operating political systems. However, identifying federal systems is no simple matter, as we have just seen. The difficulties are heightened by the wide functional differences easily observed in the various political systems that call themselves federal and by the often greater operational similarities between self-styled “federal” and “unitary” systems. Contrast, for example, the political systerns of Australia and the Soviet Union, Canada and Mexico, and Switzerland and Yugoslavia, or compare the United States and Great Britain.

Moreover, federal systems have historically been marked by great internal distinctions between theory and practice, perhaps more so than other political systems. In the United States, the measure of the maintenance of federalism was long considered to be the degree of separation of government activities by level, because it was generally believed that such separation actually existed. In fact, American federalism from the first had been characterized by extensive intergovernmental functional collaboration within the framework of separate governmental structures (Elazar 1962). Similarly, the Canadian federal system has always been described as one in which the federal government is clearly dominant—the repository of all powers not explicitly granted to the provinces. Yet since the brief period of federal supremacy in the years immediately following confederation, the provinces have consistently gained power at federal expense (Smiley 1965). The Russian federal constitution went so far as to grant each Soviet republic the right of secession—a patent impossibility under the realities of the Russian political system.

Nevertheless, some basic characteristics and operational principles common to all truly federal systems can be identified, and can help us to define such systems. These may be divided into three essential elements and a number of supplementary ones.

Written Constitution

First, the federal relationship must be established or confirmed through a perpetual covenant of union, inevitably embodied in a written constitution that outlines, among other things, the terms by which power is divided or shared in the political system and that can be altered only by extraordinary procedures. Every existing federal nation possesses a written constitution, as do most of the other nations incorporating elements of the federal principle. Juridically, federal constitutions are distinctive in that they are not simply compacts between the rulers and the ruled but involve the people, the general government, and the polities constituting the federal union. Moreover, the constituent polities retain local constitution-making rights of their own.

Noncentralization

The political system must reinforce the terms of the constitution through an actual diffusion of power among a number of substantially self-sustaining centers that are generally coincident with the constituent polities established by the federal compact. Such a diffusion of power may be termed “noncentralization.” It differs from decentralization— the conditional diffusion of specific powers to subordinate local governments by a central government, subject to recall by unilateral decision. It is also more than devolution— the special grant of powers to a subnational unit by a central government, not normally rescindable. Noncentralization ensures that no matter how certain powers may be shared by the general and constituent governments at any point in time, the authority to participate in exercising them cannot be taken away from either without mutual consent. Constituent polities in federal systems are able to participate as partners in national governmental activities and to act unilaterally with a high degree of autonomy in areas constitutionally open to them—even on crucial questions and, to a degree, in opposition to national policies, because they possess effectively irrevocable powers.

Areal Division of Power

A third element that appears to be essential in any federal system is the internal division of authority and power on an areal basis (Maass 1959), what in the United States has been called “territorial democracy.” It is theoretically possible to create a federal system whose constituent units are fixed but not territorially based. There were premodern protofederations of nomadic tribes, and some observers have seen federal elements in nations constitutionally structured to accommodate social and political divisions along ethnic, religious, or even ideological lines. Nevertheless, no authentic federal system has existed without an areal basis for the federal division. Historically, when areal divisions of power have given way to divisions on the basis of functional interest, federalism has been replaced by pluralism. In modern democratic theory the argument between Federalists and Anti-Federalists has frequently revolved around the respective values of areal and functional diffusions of power. Theorists who have argued the obsolescence of federalism while endorsing the values used to justify its existence have generally based their case on the superior utility of pluralism (Mogi 1931, 1059–115). Proponents of the federal-areal division argue that the deficiencies of territorial democracy are greatly overshadowed by the neutrality of areal representation of functional interests, and they argue further that any other system devised for giving power to these interests has proved unable to cope with the complexities and changes of interest endemic in a dynamic age while certainly limiting the advantages for local differentiation inherent in the areal system.

Studies of federal systems indicate the existence of other elements that supplement the three basic ones. While all of them are not always present in every federal system, their near universality leads one to the conclusion that they serve important functions in the maintenance of federalism in each. Similarly, while many of them are found individually in various kinds of political systems, it is their combination within a single system structured around the basic elements that is characteristic of federalism.

Maintaining Union

Generally characteristic of modern federal systems are direct lines of communication between the public and both the general and the constituent governments, which allow the public to exert direct influence on both governments and permit them to exercise direct authority over a common citizenry. The people may (and usually do) elect representatives to all governments that serve them. All of the governments may (and usually do) administer programs so as to serve the individual citizen directly. The courts may serve both levels of government, applying the relevant laws directly.

The existence of those direct lines of communication—one of the major features distinguishing federations from leagues—is usually predicated on the existence of a sense of common nationality binding the constituent polities and peoples of federal nations together, another element requisite for the maintenance of a successful federal system. In some countries this sense has been inherited, but in most it has had to be invented. Federalism in Germany has been based on a common sense of an inherited German nationhood. In the United States, Argentina, and Australia, a sense of nationhood had to be at least partly invented. National consciousness soon became second nature in those countries, since none of their constituent states ever had much more than a partially developed national consciousness of its own. Canada, Switzerland, and Yugoslavia have had to invent a sense of common nationality strong enough to embrace “nationality groups” whose intense national feelings are rooted in the constituent polities. In such newly formed federal systems as India, Malaysia, and Nigeria, the future of federalism is endangered by the absence of a common sense of nationality. Contrary to some theories, federalism has not proved to be a particularly good device for integrating diverse nationalities into a single political system unless it has been accompanied by other factors compelling integration.

Geographic necessity has been a major factor promoting the maintenance of union within federal systems, even in the face of strong pressures toward disunion. The Mississippi Valley in the United States, the Alps in Switzerland, the island character of the Australian continent, and the mountains and jungles surrounding Brazil have served as direct geographic influences promoting unity. More political than “natural,” but no less compelling geographically, have been the pressures for Canadian union generated by that country’s neighbor to the south or for the federation of the German states generated by their neighbors to the east and west.

Maintaining Noncentralization

It has been well demonstrated that the constituent polities in a federal system must be fairly equal in population and wealth, or at least balanced geographically or numerically in their inequalities, if noncentralization is to be maintained. The United States has been able to overcome its internal inequities because each geographic section has included both great and small states. In Canada, the ethnic differences between the two largest provinces have served to inject balance into the system. The existence of groups of cantons in different size categories has helped maintain Swiss federalism. Similar distributions exist in every other system whose federal character is not in question.

The existence of a large polity dominating smaller states with which it is nominally federated on equal terms has often been one of the major reasons for the failure of federalism. In the German federal empire of the late nineteenth century, Prussia was so obviously dominant that the other states had little opportunity to provide national leadership or even a reasonably strong hedge against the desires of its king and government. Similarly, even without the problem of the Communist Party, the existence of the Russian Soviet Federal Socialist Republic, which occupied three-fourths of the area and contained three-fifths of the population of the Soviet Union, would have severely crippled the possibilities of maintaining authentic federal relationships in that country.

Successful federal systems have also been characterized by the permanence of the boundaries of their constituent units. This does not mean that boundary changes cannot occur, but it does mean that as a matter of constitutional law such changes can be made only with the consent of the polities involved and that, as a matter of political policy, they are avoided except in the most extreme situations. Boundary changes have occurred in the “classic” federal systems—the United States divided Virginia during the Civil War , Canada has enlarged the boundaries of its provinces, and Switzerland has divided cantons—but they have been the exception rather than the rule, and in every case at least the formal consent of the constituent polities was given. Even in weaker federal systems, such as those of Latin America, state boundaries have tended to remain relatively secure. When boundary changes have been made, as in the postwar redrawing of Lander boundaries in West Germany to account for the diminished territory of the Federal Republic and the alteration of state lines to recognize linguistic unities in India, the essential heartlands of the polities involved have been preserved.

In a few very important cases, noncentralization is both reflected and supported through the constitutionally guaranteed existence of different systems of law in the constituent polities. Though the differences in those systems are likely to be somewhat eroded over time—the extent of their preservation varying from system to system— their continued existence as separate systems and the national mixture of laws that their existence promotes act as great bulwarks against centralization. In the United States, each state’s legal system stems directly and to a certain extent uniquely from English law, while federal law occupies only an interstitial position binding the systems of the 50 states together insofar as necessary. The resulting mixture of laws keeps the administration of justice, even in federal courts, substantially noncentralized (Macmahon 1955, ch. 11). In Canada, the existence of common law and civil law systems side by side is one constitutional guarantee of French Canadian cultural survival. Noncentralized legal systems, a particularly Anglo-American device, are often used in legislative as well as federal unions. They are rare in other political cultures and have become less common in all federal systems established since 1900. More common is the provision for modification of national legal codes by the subnational governments to meet special local needs, as in Switzerland.

The point is generally well taken that unless the constituent polities have substantial influence over the formal or informal amending process, the federal character of the system is open to question. Since many constitutional changes are made without recourse to formal constitutional amendment, the position of the constituent polities must be additionally protected by a constitution designed so that any serious changes in the political order can be made only by the decision of dispersed majorities that reflect the areal division of powers. This protection, which federal theorists have argued is important for popular government as well as for federalism (Diamond 1963), is a feature of the most truly federal systems.

Noncentralization is strengthened in all federal systems by giving the constituent polities guaranteed representation in the national legislature and, often, by giving them a guaranteed role in the national political process. In some federal systems, notably those of the United States and Switzerland, the latter is guaranteed in the written constitution. In others, such as Canada and those in Latin America, certain powers of participation have been acquired and have become part of the traditional constitution.

Recent studies have shown that the existence of a noncentralized party system is perhaps the most important single element in the maintenance of federal noncentralization (Macmahon 1955). Noncentralized parties initially develop because of the constitutional arrangements of the federal compact, but once they have come into existence, they tend to be self-perpetuating and to function as decentralizing forces in their own right.

The United States and Canada provide two examples of the different forms that can be assumed by a noncentralized party system. In the United States, where party responsibility is minimal and virtually nonexistent on the national level, a two-party system has developed, with the parties actually being coalitions of the several state or, in some cases, local party organizations functioning as national units only for the quadrennial presidential elections or for purposes of organizing the national Congress. Party financing and decision making are functions that are dispersed either among the state organizations or among widely divergent factions operating nationwide. In Canada, on the other hand, the parliamentary form of government, with its concomitant requirement of party responsibility, means that at the national level considerably more party cohesiveness must be maintained simply in order to gain and hold power.

The noncentralized party system in Canada has developed through a fragmentation of the parties along regional or provincial lines. The parties with nationwide bases are still divided internally along provincial lines, with each provincial organization autonomous. Individual provinces are frequently dominated by regional parties that send only a few representatives to the national legislature, adding to the fragmentation of the system. Very often, the party victorious in national elections is the one that is briefly able to expand its base to most nearly national proportions.

European-style federal systems where parliamentary government is the norm follow the Canadian model. Australia and Switzerland come closest to paralleling it, and traces of it can be found in the German Federal Republic. A more centralized variation of the same pattern exists in countries like India, in which the national government is dominated by one very large and diffused national party that is held together nationally by personal leadership but is quite factionalized in the states where it must share the governing power with other parties.

Federal nations with less developed party systems frequently gain some of the same decentralizing effects through what Latin Americans call caudillismo —noncentralized personal leadership systems that diffuse power through strong local leaders operating in the constituent polities. Caudillistic noncentralization is most characteristic of Latin American federal systems but apparently exists in such new federations as Nigeria and Malaysia as well.

The importance to federalism of a noncentralized party system is well illustrated by contrast with those formally federal nations dominated by one highly centralized party, such as the Soviet Union, Yugoslavia, and Mexico. In all three cases, the dominant party has operated to limit the power of the constituent polities in direct proportion to the extent of its dominance.

Ultimately, however, noncentralization is maintained to the extent that there is respect for the federal principle within each federal system. Such respect is necessarily reflected in the immediate recognition by the decision-making publics that the preservation of the constituent polities is as important as the preservation of the nation as a whole. In the words of the American Chief Justice Salmon P. Chase, federalism looks to “an indestructible Union, composed of indestructible States” ( Texas v. White 1869). This recognition may be based on loyalty to particular constituent polities or on an understanding of the role played by federalism in animating the political system along certain unique lines. Thus, those who value government by conciliation and partnership, with emphasis on local control, are likely to have respect for the federal principle.

Citizens of a federal nation must show that respect in two ways, by showing self-restraint and by cultivating the political art of negotiation. Federalism can exist only where there is considerable tolerance of diversity and willingness to take political action through conciliation even when the power to act unilaterally is available. The usual prerequisite to action in federal systems is the ability to build consensus rather than the power to threaten coercion. Western federal nations can furnish many examples of the exercise of national self-restraint in dealing with difficult federal problems. Even in a federal system as centralized as that of India, the constitutional right of the national government to assume control of the state governments is exercised as little as possible—notably when the Communists win local elections—and is then clearly a temporary action.

The historical record indicates that the dual purpose implied in Chase’s dictum has been at least as responsible for the creation of federal systems as has the single interest in political unification. The Canadian confederation came into being not only to create a new nation out of the British North American colonies but also to give Ontario and Quebec autonomous political systems of their own. Similarly, every move toward greater union in the Swiss confederation has been made in order to preserve the independence of the cantons from both outside encroachment and revolutionary centralism (Sharma 1953, 269–75). A good case can be made that similar motivations were important in the creation of Australia, Malaysia, Nigeria, and the United States.

Maintaining the Federal Principle

Several of the devices commonly found in federal systems serve to maintain the federal principle per se and are consequently supportive of both the national government and the constituent polities. Two of these are particularly common and important.

The maintenance of federalism requires that the nation and its constituent polities each have a substantially complete set of governing institutions of their own with the right—within limits set by the compact—to modify those institutions unilaterally. Separate legislative and administrative institutions are both necessary. This does not necessarily mean that all governmental activities must be carried out by separate institutions at each level. It is possible for the agencies of one government to serve as agents of the other by mutual agreement. But each government must have the needed institutions to function independently in the areas of its authority and the structural resources to cooperate freely with the other government’s counterpart agencies.

In this regard, the contractual sharing of public responsibilities by all governments in the system appears to be a central characteristic of federalism. Sharing, broadly conceived, includes common involvement in policy making, financing, and administration of government activities. In contemporary federal systems, it is characterized by extensive intergovernmental collaboration. Sharing can be based on highly formal arrangements or informal agreements. In federal systems, it is usually contractual in nature. The contract—politically a limited expression of the compact principle—is used in formal arrangements as a legal device to enable governments responsible to separate polities to engage in joint action while remaining independent entities. Even where government agencies cooperate without formally contracting to do so, the spirit of federalism that pervades ongoing federal systems tends to infuse the participating parties with a sense of contractual obligation.

In any federal system, it is likely that there will be continued tension between the federal government and the constituent polities over the years and that different “balances” between them will develop at different times. The existence of this tension is an integral part of the federal relationship, and its character does much to determine the future of federalism in each system. The question of federal-state relations that it produces is perennially a matter of public concern because virtually all other political issues arising in a federal system are phrased in terms of their implications for federalism. In this way, federalism imposes a way of looking at problems that stands apart from the substantive issues raised by the problems themselves. This is particularly true of those issues that affect the very fabric of society. In the United States, for example, the race question is a problem of federal-state as well as black-white relations, and the same is true of the cultural question in Canada and the linguistic question in India.

The End Product

The very terminology of federalism is characterized by a revealing ambiguity that is indicative of the end product of federal systems. The word “federalize” is used to describe the unification of “sovereign” states into a federal polity and also the permanent devolution of authority and power within a nation to subnational governments. In this ambiguity lies the essence of the federal principle—the perpetuation of both union and noncentralization.

Viewed from the top, the combination of the elements discussed above results in a federal rather than a central government, that is, a government composed of a nationwide coalition of political institutions, some with predominantly local power bases (such as the national legislature), and others with predominantly national power bases (such as the national bureaucracy). This government, whose power is thus diffused vertically and laterally, functions in cooperation with the constituent polities that it must conciliate in order to act. Decision making is characterized by heavy reliance upon negotiation and bargaining and by minimal reliance upon the exercise of force. Operations are characterized by a measure of disorder, since noncentralization breeds multiple power centers located at or cutting across all levels of government. Each of these centers seeks to keep open routes of access to the others, usually succeeding because it is in the best interests of all to maintain this kind of disorder as part of the “rules of the game.”

Viewed locally, a federal system consists of governmental inputs from different sources whose local connections normally serve to fragment local authority. However, because such a system rewards those who actively seek to reconcile the diffuse elements and bind them together for a larger purpose, local political leaders can control these inputs to a great extent. While this may not prevent the national government from exercising great power at any given time or from increasing its total power over time, it does mean that as long as the federal principle remains operative, the public can and almost invariably does limit certain kinds of national government actions or guides such actions into particular channels (often directed toward strengthening the constituent governments) by invoking the terms of the compact.

Viewed theoretically, these patterns of behavior and the arguments advanced to justify them serve to reaffirm the fundamental principles that (1) the strength of a federal polity does not stem from the power of the national government but from the authority vested in the nation as a whole, (2) both the national government and the governments of the constituent polities are possessed of delegated powers only, and (3) all governments are limited by the common national constitution.

All this should make it apparent that federalism is a form of popular government embodying elements of both republicanism and democracy. The federal structures occasionally adopted by nondemocratic systems must generally be considered “window dressing” except insofar as the injection of the federal principle may serve as a democratizing force in itself. In Yugoslavia, for example, the existence of a federal superstructure has proved useful in fostering such decentralization as the Communist Party leadership wished to allow and may even have played a role in stimulating decentralizing tendencies.

EMPIRICAL AND THEORETICAL DEVELOPMENT

Ancient protofederal systems.

Long before the term “federal” was invented, there were political systems that embodied elements of the federal principle. The Israelite political system was probably the first example in recorded history of a union of constituent polities based on a sense of common nationality, with national and tribal political institutions and some division of functions between the two partly formalized by a written constitution. As a republic it was never able to overcome the problems of national executive leadership and succession and, after some 200 years, revised its constitution to superimpose a limited monarchy on its federal institutions. Still, as many of the seventeenth-century Federalists noted, it came closer to resembling a modern federal system than any comparable premodern nation. Its classic intellectual product, the Bible, was the first book to discuss the problems of a federal polity.

Permanent leagues of independent states united by a sense of common need but without any sense of common nationhood were found in various parts of the Greek world. They were entrusted with certain matters in the realm of foreign affairs and defense but were in every respect accountable to their member states. The classic example of this system was the Achaean League (251–146 B.C.), a protofederal system often erroneously considered to be the first federal polity (Freeman [1863] 1893). The Greeks left some descriptions of their leagues but no theoretical discussions of the league as a political system. Except for Aristotle’s criticisms, the great Greek political theorists ignored federalism as a political principle because the very idea contradicted their conception of the small, unified polis as the only basis upon which to build the good regime.

Several of the great ancient empires, notably the Persian, Hellenic, and Roman Empires, structured their political systems around the principle of cultural home rule. Since political life was virtually inseparable from the religious and cultural aspects of society in the ancient world, imperial recognition of local constitutions offered a measure of contractual devolution of political power; however, as in more recent examples of this form of imperialism, such home rule was not a matter of local right but represented a conditional grant subject to unilateral revocation by the imperial rulers.

Medieval Experiments

Elements of the federal principle are foreshadowed in medieval feudalism through its emphasis on essentially immutable contractual relationships that permanently link the contracting parties while guaranteeing their rights. However, the hierarchical character of these relationships, coupled with the lack of practical mechanisms to maintain the terms of the contracts, led to the degeneration of those elements in most feudal societies. Another movement in the direction of federalism grew out of the development of medieval commercial towns in central Europe that formed leagues for mutual defense and assistance following the Greek model. The most important development in this period was the first confederation of Swiss cantons in 1291 for mutual aid in defense of their independence. The success of this effort was in no small measure due to its connection, from the beginning, with quasi-popular government. These embryonic federal experiments all proceeded pragmatically while federal theory was confined to juridical discussions of the corporate relationships between polities in the Holy Roman Empire.

Ultimately a fusion of contractual elements from feudalism with political mechanisms from the commercial confederacies gave rise to the immediate antecedents of modern federalism. The Christian states on the Iberian Peninsula created a political system that in its most advanced stages came very close to authentic federalism. During the years of the Spanish Reconquest, most of the peninsula was reorganized under the fuero system, which established local governments with relatively liberal political institutions in order to encourage resettlement. New states were formed through feudal-style contractual relationships designed to protect local rights. Three of these states joined in a quasi-federal arrangement under the Crown of Aragon, each of them (plus several in Italy added later) retaining its own constitution and governing institutions as well as acquiring representation in the overall Aragonese government. The unification of Spain under a multiple monarchy in 1469 left most of these federal elements intact for the next two and a half centuries, but the demands of the monarchy ultimately subverted them, transforming Spain into a precariously centralized state.

In the sixteenth century, certain emergent civil societies, influenced by the Reformation to return to Scripture as a political source, by the Spanish system of political organization, as well as by local necessity, began to apply federal principles for statebuilding purposes. The Hapsburg heirs to the Spanish crown had applied Iberian principles to the organization of their other European possessions. Their governmental reforms in the Netherlands provided an organizational basis for the federation of the United Provinces in the late sixteenth century. When that country gained its independence, it established a political system that, while unable to solve the most crucial technical problems of federalism, maintained itself in federal style for 200 years, until Napoleon put an end to its existence, leaving a residue of noncentralization that marks the Netherlands today.

The Swiss, in the meantime, were developing their own techniques for combining feudal and commercial elements to create a loose confederation of cantons, which was also influenced by biblical ideas and, perhaps negatively, by contacts with Hapsburg Spain. Achieving full independence in 1648, the Swiss confederation remained loosely leagued for two centuries (except for the Napoleonic interlude), until it adopted a federal constitution in 1848.

First Modern Formulations

The protofederalism of the United Provinces and the Swiss cantons, coming at the outset of the age of nationalism, also stimulated the first serious efforts to formulate federal theories based on modern political ideas. Jean Bodin analyzed the possibilities of federation in light of the problem of sovereignty. Hugo Grotius and Samuel Pufendorf examined federal arrangements as aspects of international law. These theorists all treated federalism as an aspect of international law. Johannes Althusius (1603), analyzing the Dutch and Swiss constitutions, was the first to perceive that federalism was really concerned with problems of national unity. The real father of modern federal theory, he was also the first to connect federalism with popular sovereignty and to distinguish between leagues, multiple monarchies, and confederations. His retention of hierarchical principles and his emphasis on the corporate organization of society both flawed the federal character of his work and reflected the empirical roots of his analysis.

Thus the rise of the nation-state in the sixteenth and seventeenth centuries stimulated federal solutions to the problems of national unification. In all but a few countries on the periphery of western Europe, the application of federal principles foundered on three problems: (1) the conciliation of feudally rooted hierarchies with a system demanding fundamental social equality in order to facilitate the sharing of power, (2) the reconciliation of local autonomy with national energy in an era of political upheaval that required most nations to maintain a state of constant mobilization basically incompatible with the toleration of local differences, and (3) the problem of executive leadership and succession, which is particularly complex in federal systems and was not solved until the United States invented the elected presidency.

Modern Federalism

The rise of modern imperialism also contributed to the emergence of federalism, as indicated by the works of the important prerevolutionary political theorists of the eighteenth century, for example, Montesquieu and Adam Smith. Here, too, the Spanish experience was influential, but it remained for the British to create the requisite popular institutions in their colonization of North America and for the biblically influenced colonists to create the theoretical justification for these institutions. The theoretical ambiguity of those quasi-federal institutions led Americans to assume that their relationship to the British government was federal, while London entertained no such notion (Becker [1922] 1958). The Americans’ response to their view of the imperial system helped them develop the federal ideas they were later to use so creatively.

The founders of the United States of America can be said to have transformed and organized the principles of federalism into a practical system of government. They were able to do so partly because their nation developed without the disadvantages that plagued earlier federal systems. As a postfeudal society, the United States had no serious problem of coping with hierarchies. As a relatively isolated nation, external pressures for centralization were not present for nearly 150 years. American political inventiveness took care of the internal problems of applying the federal principle, though not without having to fight a major civil war to resolve some of them. Though the specific forms of American federalism were not widely imitated with success, its basic principles of organization were emulated by almost every other nation attempting the federal solution to the problems of popular government in a pluralistic civil society. The creation of the theoretical framework for those principles was part and parcel of the invention of federalism. Set forth in its basics in the debate over ratification of the U.S. Constitution, that framework had at its core The Federalist (Hamilton, Madison, and Jay [1787–88] 1961), the classic formulation of the principles of modern federalism. Equally important to the evolution of federal systems, however, were the arguments of those who wished to preserve even greater state autonomy; many of these arguments were transformed into tools to promote extraconstitutional decentralization during the nineteenth century.

From the first, American contributions to federal theory—even those of the few theorists not actively involved in politics—have been rooted in the practical concerns of maintaining a federal system. Most of these contributions have, accordingly, been formulated as discussions of constitutional law. The courts, particularly the federal Supreme Court, have conducted continuing debate on the meaning and character of federalism through the medium of case law. Leading political figures, such as Albert Gallatin, John Calhoun , Abraham Lincoln , Woodrow Wilson , and Theodore and Franklin D. Roosevelt , have made real contributions through their state papers. The pragmatic orientation of those contributions, however, has tended to obscure their more lasting theoretical importance (Anderson 1955).

The French Revolution, while stimulating the development of popular government, was essentially hostile to the spirit and institutions of federalism. Its immediate heirs tried to destroy federal institutions in western Europe in the name of democracy, and the subsequent bearers of its tradition have proved equally hostile to federal ideas—except insofar as some of them have equated federalism with decentralized government.

In the nineteenth century, several of the new Latin American nations, following the United States’ example and also influenced by the federal elements in the Hispanic imperial tradition, experimented with federalism, with distinctly mixed results. Even where federalism survived in theory, the instability of Latin American governments and the frequent recourse to dictatorial regimes hampered its effective operation. Even so, the three largest Latin American nations—Argentina, Brazil, and Mexico—retain federal systems of varying political significance; federal principles are also included in the political systems of Colombia and Venezuela.

In the mid-nineteenth century, European politicians and political theorists, stimulated by necessity, the American example, and the very influential studies of Tocqueville ([1835] 1945), turned to consider federalism as a form of democratic political organization. Though practical applications remained few, numerous works were produced, primarily in the German-speaking countries, where doctrinaire and metaphysical analyses of federalism in relation to the problems of nationalism, sovereignty, and popular consent were in vogue. The most important of these works were the theoretical formulations of Bluntschli (1849–52), based on his observations of federal reorganization in Switzerland, and the historical studies of Gierke ([1913] 1934). In the end, federal principles were used in the unification of Germany, and Switzerland adopted a modern federal constitution. Fully federal solutions were rejected in other nations, but several adopted quasi-federal institutions to meet particular problems of unification and decentralization.

During the late nineteenth century, British interest in imperial federalism was manifested in several ways. Canada and Australia were given federal constitutions and dominion status in 1867 and 1901, respectively, and the foundations were laid for the federal unification of India. British political theorists interested in imperial unity and internal devolution explored contemporary (Bryce [1888] 1909) and historical (Freeman [1863] 1893) federal experiments and presented arguments of their own as to the utility and proper organization of federal systems (Labilliere 1894).

Whereas in the nineteenth century federalism was used to abet ethnic nationalism, in the twentieth it has been used as a means to unify multiethnic nations. Several of the ethnically heterogeneous nations created or reconstructed after World War I, including the Soviet Union and Yugoslavia, formally embraced federalism as a nominal solution to their nationality problems. The United Kingdom added a federal dimension at the same time to accommodate the Irish. The extension of nation-building activities to Asia and Africa, where ethnic diversity is even greater than in Europe, has led to new efforts in the same vein. In nations outside of the totalitarian orbit, such as India and Malaysia, federalism has been used to secure political and cultural rights for the larger ethnolinguistic groups. In Africa, where the survival of separate ethnic groups has been called into question by the native nationalists, federalism has been applied in several nations, including Nigeria and Cameroon, as a device for sharing political power rather than a way to maintain cultural autonomy.

The Contemporary Study of Federalism

The emergence of political science as a discipline in the late nineteenth century stimulated a shift from an explicitly normative to a predominantly empirical interest in federalism. Such noted British scholars as Bryce (1901) and Dicey ([1885] 1961) were the first to study federalism as part of their general interest in political systems. American scholars began their work in the 1870s, as the Civil War generation was passing into history, but their first works still reflected the issues of the war. Thus Burgess (1886) concluded that the utility of the states was dissipated by modern technology just as their power was destroyed by the war, while Wilson ([1885] 1961) accepted the view that the war had wrought great changes but still saw federalism as alive and vital.

Though these men and their colleagues laid the foundations for the empirical study of federal systems with the tools of contemporary political science, federalism as a field of study was neglected for many years. The rise of other problems to attract the attention of scholars, the negation of earlier legalistic and metaphysical approaches, and the decline of normative interest in the federal principle combined to dissuade younger political scientists from examining questions of federal government, except incidentally, until the twentieth century was well advanced.

Renewed interest in the field first developed when American students of public administration found themselves confronted with problems of intergovernmental relations at nearly every turn. The study of intergovernmental relations in the administrative realm brought about significant gains in the understanding of the process of federal government, not the least of which was a growing recognition that the assumptions about federalism underlying their work, borrowed whole from nineteenth-century theorists, needed serious reexamination. Beginning in the 1930's and 1940's, American and British political scientists began to raise fundamental questions about the nature of federal systems and the interrelationships of their governmental components (Anderson 1946). In the 1950's these questions were expanded to include, among others, problems of political influence, the role of political parties, the historical development of federal systems, and the meaning of earlier federal theories (Bachelder and Shaw 1964). By the early 1960's, students of existing federal governments were rediscovering the need to clarify the principles of federalism in order to understand the operation of those governments. Students of comparative government were also becoming increasingly interested in problems of political integration, centralization, and decentralization—all of which stimulated new interest in the systematic study of federalism.

While many attempts to establish federal systems have ended in failure, such systems, once established, have proved to be most durable. No authentic federal system that has lasted for even fifteen years has ever been abandoned except through revolutionary disruption (as in the case of Germany), and in every such case federalism—showing remarkable resilience—has ultimately been restored. Certain theories to the contrary, there is no evidence that federalism represents a transitional stage on the road to unitary government. No federal system in history has ever “evolved” into a unitary one, nor has any established system been structurally consolidated by internal decision. On the contrary, federal devices to conciliate minority populations have been used in place of force to maintain unity even in consolidated systems. Moreover, federal systems or systems strongly influenced by the federal principle have been among the most stable and long lasting of polities.

At the same time, relatively few cultures have been able to utilize federal principles in government. Anglo-American civil societies have done so most successfully. Even those not fully committed to federalism have, without exception, included elements of the federal principle in whatever systems they have chosen, no doubt because both constitutionalism and noncentralization rate high on the scale of Anglo-American political values.

Of the sixteen formally federal nations that exist in the world today, Australia, Cameroon, Canada, India, Malaysia, Nigeria, and the United States were created under British colonial tutelage. These seven include all the nations established since World War II that have been able to maintain federal systems, and they provide most of the successful examples of federalism in operation. Of the nine remaining federal nations, Argentina, Brazil, and Mexico fall directly within the Hispanic political tradition, and Austria, Germany, and Switzerland, though they follow the Germanic political tradition, were also influenced by Hispanic ideas at some point in their development. Both political traditions have been influential in stimulating federal inclinations in many of the nonfederal nations, but they have been notably less successful in fostering lasting federal institutions; the Hispanic tradition has failed to combine federalism and stability, while the Germanic has tended toward authoritarian centralization. (The three remaining nations, Libya, the former Soviet Union, and former Yugoslavia, are federal in name and formal structure but hardly in any meaningful sense of the term.)

The successful operation of federal systems requires a particular kind of political environment, one that is conducive to popular government and has the strong traditions of political cooperation and self-restraint that are needed to maintain a system that minimizes the use of coercion. Beyond the level of tradition, federal systems operate best in societies with sufficient homogeneity of fundamental interests—or consensus—to allow a great deal of latitude in political operations and to place primary reliance upon voluntary collaboration. The existence of severe strains on the body politic that lead to the use of force to maintain domestic order is even more inimical to the successful maintenance of federal patterns of government than of other forms of popular government. Moreover, federal systems are most successful in civil societies with the human resources to fill many public offices competently and with material resources plentiful enough to allow a measure of economic waste in payment for the luxury of liberty.

This essay is reprinted from David L. Sills (ed.), The International Encyclopedia of the Social Sciences (New York: Macmillan, 1972). Reprinted by permission of the Gale Group.

Daniel J. Elazar

Last updated: 2006

SEE ALSO: Federal-State Relations ; Intergovernmental Relations ; U.S. Constitution

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federalism , mode of political organization that unites separate states or other polities within an overarching political system in a way that allows each to maintain its own integrity . Federal systems do this by requiring that basic policies be made and implemented through negotiation in some form, so that all the members can share in making and executing decisions. The political principles that animate federal systems emphasize the primacy of bargaining and negotiated coordination among several power centres; they stress the virtues of dispersed power centres as a means for safeguarding individual and local liberties.

The various political systems that call themselves federal differ in many ways. Certain characteristics and principles, however, are common to all truly federal systems.

First, the federal relationship must be established or confirmed through a perpetual covenant of union , usually embodied in a written constitution that outlines the terms by which power is divided or shared; the constitution can be altered only by extraordinary procedures. These constitutions are distinctive in being not simply compacts between rulers and ruled but involving the people, the general government, and the states constituting the federal union. The constituent states, moreover, often retain constitution-making rights of their own.

Second, the political system itself must reflect the constitution by actually diffusing power among a number of substantially self-sustaining centres. Such a diffusion of power may be termed noncentralization . Noncentralization is a way of ensuring in practice that the authority to participate in exercising political power cannot be taken away from the general or the state governments without common consent.

A third element of any federal system is what has been called in the United States territorial democracy . This has two faces: the use of areal divisions to ensure neutrality and equality in the representation of the various groups and interests in the polity and the use of such divisions to secure local autonomy and representation for diverse groups within the same civil society . Territorial neutrality has proved highly useful in societies that are changing, allowing for the representation of new interests in proportion to their strength simply by allowing their supporters to vote in relatively equal territorial units. At the same time, the accommodation of very diverse groups whose differences are fundamental rather than transient by giving them territorial power bases of their own has enhanced the ability of federal systems to function as vehicles of political integration while preserving democratic government. One example of this system may be seen in Canada , which includes a population of French descent, centred in the province of Quebec.

Elements maintaining union

Modern federal systems generally provide direct lines of communication between the citizenry and all the governments that serve them. The people may and usually do elect representatives to all the governments, and all of them may and usually do administer programs that directly serve the individual citizen.

The existence of those direct lines of communication is one of the features distinguishing federations from leagues or confederations . It is usually based on a sense of common nationality binding the constituent polities and people together. In some countries this sense of nationality has been inherited, as in Germany , while in the United States, Argentina , and Australia it had to be at least partly invented. Canada and Switzerland have had to evolve this sense in order to hold together strongly divergent nationality groups.

Geographic necessity has played a part in promoting the maintenance of union within federal systems. The Mississippi Valley in the United States, the Alps in Switzerland, the island character of the Australian continent, and the mountains and jungles surrounding Brazil have all been influences promoting unity; so have the pressures for Canadian union arising from that country’s situation on the border of the United States and the pressures upon the German states generated by their neighbours to the east and west. In this connection, the necessity for a common defense against common enemies has stimulated federal union in the first place and acted to maintain it.

The constituent polities in a federal system must be fairly equal in population and wealth or else balanced geographically or numerically in their inequalities. In the United States, each geographic section has included both great and small states. In Canada, the ethnic differences between the two largest and richest provinces have prevented them from combining against the others. Swiss federalism has been supported by the existence of groups of cantons of different sizes and religio-linguistic backgrounds. Similar distributions exist in every other successful federal system.

A major reason for the failure of federal systems has often been a lack of balance among the constituent polities. In the German federal empire of the late 19th century, Prussia was so dominant that the other states had little opportunity to provide national leadership or even a reasonably strong alternative to the policy of the king and government. During the Soviet era (1917–90/91), the existence of the Russian Soviet Federated Socialist Republic—occupying three-fourths of the area and containing three-fifths of the population—severely limited the possibility of authentic federal relationships in that country even if the communist system had not.

Successful federal systems have also been characterized by the permanence of their internal boundaries. Boundary changes may occur, but such changes are made only with the consent of the polities involved and are avoided except in extreme situations.

In a few very important cases, noncentralization is given support through the constitutionally guaranteed existence of different systems of law in the constituent polities. In the United States, each state’s legal system stems directly and to a certain extent uniquely from English (and, in one case, French) law, while federal law occupies only an interstitial position binding the systems of the 50 states together. The resulting mixture of laws keeps the administration of justice substantially noncentralized, even in federal courts. In Canada, the existence of common-law and civil-law systems side by side has contributed to French-Canadian cultural survival. Federal systems more often provide for modification of national legal codes by the subnational governments to meet special local needs, as in Switzerland.

The point has often been made that in a truly federal system the constituent polities must have substantial influence over the formal or informal constitutional -amending process. Since constitutional changes are often made without formal constitutional amendment , the position of the constituent polities must be such that serious changes in the political order can be made only by the decision of dispersed majorities that reflect the areal division of powers . Federal theorists have argued that this is important for popular government as well as for federalism.

Noncentralization is also strengthened by giving the constituent polities guaranteed representation in the national legislature and often by giving them a guaranteed role in the national political process. The latter is guaranteed in the written constitutions of the United States and Switzerland. In other systems, such as those of Canada and Latin America, the constituent polities have acquired certain powers of participation, and these have become part of the unwritten constitution.

Perhaps the most important single element in the maintenance of federal noncentralization is the existence of a noncentralized party system. Noncentralized parties initially develop out of the constitutional arrangements of the federal compact, but once they have come into existence they tend to be self-perpetuating and to function as decentralizing forces in their own right. The United States and Canada provide examples of the forms that a noncentralized party system may take. In the two-party system of the United States, the parties are actually coalitions of the state parties (which may in turn be dominated by specific local party organizations) and generally function as national units only for the quadrennial presidential elections or for purposes of organizing the national Congress.

In Canada, on the other hand, the parliamentary form of government, with its requirements of party responsibility, means that on the national plane considerably more party cohesiveness must be maintained simply in order to gain and hold power. There has been a fragmentation of the parties along regional or provincial lines. The party victorious in national elections is likely to be the one able to expand its provincial electoral bases temporarily to national proportions.

Federal nations with less-developed party systems frequently gain some of the same decentralizing effects through what has been called caudillismo —in which power is diffused among strong local leaders operating in the constituent polities. Caudillistic noncentralization has apparently existed also in Nigeria and Malaysia.

Several devices found in federal systems serve to maintain the federal principle itself. Two of these are of particular importance.

The maintenance of federalism requires that the central government and the constituent polities each have substantially complete governing institutions of their own, with the right to modify those institutions unilaterally within limits set by the compact. Both separate legislative and separate administrative institutions are necessary.

The contractual sharing of public responsibilities by all governments in the system appears to be a fundamental characteristic of federalism. Sharing, broadly conceived, includes common involvement in policy making, financing, and administration. Sharing may be formal or informal; in federal systems, it is usually contractual. The contract is used as a legal device to enable governments to engage in joint action while remaining independent entities. Even where there is no formal arrangement, the spirit of federalism tends to infuse a sense of contractual obligation.

Federal systems or systems strongly influenced by federal principles have been among the most stable and long-lasting of polities. But the successful operation of federal systems requires a particular kind of political environment , one that is conducive to popular government and has the requisite traditions of political cooperation and self-restraint. Beyond this, federal systems operate best in societies with sufficient homogeneity of fundamental interests to allow a great deal of latitude to local government and to permit reliance upon voluntary collaboration. The use of force to maintain domestic order is even more inimical to the successful maintenance of federal patterns of government than to other forms of popular government. Federal systems are most successful in societies that have the human resources to fill many public offices competently and the material resources to afford a measure of economic waste as part of the price of liberty.

128 Federalism Essay Topics & Examples

Need to write a federalism essay? Looking for good federalism topics and samples for inspiration? This article is a great place to start!

⭐ Federalism Essay Prompts: Federalism in the United States

🏆 best federalism topics & essay examples, 🎓 good research topics about federalism, 🔍 federalism essay topics: simple & easy, 💡 most interesting federalism topics to write about, ❓ federalism essay questions.

What is federalism? Essay writing always starts with research, and we can help you with it. In short, federalism is a mode of government that combines general and regional governments. Your argumentative federalism essay can focus on federalism’s importance. Or, you can show your understanding of a unique system of governance in the United States.

In this article, you will find 74 excellent federalism essay topics and research ideas. You can also read our samples and use our free topic generator !

With its extensive territory and large population, the US required a robust government to sustain its infrastructure and grow into the global superpower it is today. However, its unique circumstances at the time of the formation made methods that were standard at the time inapplicable, forcing the Founding Fathers to innovate.

As a result, even two hundred years later, each state retains a considerable degree of independence. Your essay can cover any of the many different topics of federalism and its theoretical and practical applications:

• You can center your essay on the conflicting ideas of Aristotelian happiness and utilitarianism, with the Republican and Democratic parties representing the options, respectively. The purpose of a country is to make sure that its citizens are as happy and comfortable as they can be. However, the task becomes complicated when the question of what happiness means is taken into consideration.
• The emergence of the United States as a federation is a great federalism essay topic that can be explained by the circumstances of the nation’s formation. After fighting off the British in the Revolutionary War, the territory that would become the United States remained a loose alliance of small states, which can be considered a confederation. However, the system was ultimately non-viable, and the Founding Fathers had to create a more centralized country by creating and ratifying the Constitution.
• Alternatively, you can focus on the role if Constitution and its history. At first, many states formed anti-federalist movements and opposed the initiative, but eventually, they agreed to it after their concerns were addressed in the Bill of Rights. The Constitution has been amended many times, but its core has remained unchanged. The United States is still a federation, and its states can adopt many critical laws without requiring the approval of the central government.
• Discuss the idea of federalism in other countries that do not currently use it, providing examples. How much do the United States’ unique circumstances contribute to its ability to maintain a federation?
• Talk about examples of other federations that currently exist or have existed in the past. Some of their models differ considerably from that used in the United States.
• Discuss the idea of confederations and the reason why few to no countries can be classified as one despite their titles.

Find more ideas and excellent federalism essay samples below!

• Federalism Advantages and Disadvantages This paper discusses the advantages and disadvantages of a federal system of government. A federal government can either be centralized where the central government has broad powers compared to state or provincial powers, or a […]
• Federalism Implications for Medicaid in California An example used to compare and contrast the two metaphors is the system of Medicaid as controlled by the federal government and by the state government.
• Federalism in United States Federalism is therefore defined as a coordination of the regime in which control and the influence of power is partitioned with an attempt to distribute it in the central government and the constituent supporting units.
• The United States Federalism and Political Culture Having established the central values of the United States’ political culture, it is worth discussing how some of them align with the concepts of federalism and anti-federalism. Therefore, it can be concluded that federalism is […]
• “American Federalism” Article by Derthick This article considers the issue of the effective distribution of powers between the central and federal administrations. Thus, it shows the division of powers between the national and federal administrations in 1965-1980 and the current […]
• Healthcare Regulations and Federalism’s Impact Although the ACA established the regulations for getting the coverage on federal levels, the government had to allow local policy-making due to the high autonomy of many regions.
• The Account of the Pros and Cons of Federalism To conclude, federalism and devolution are rather efficient forms of the state government provided they are properly implemented in the country.
• The Federalist Papers to Understand the United States Constitution The purpose of the federalist papers was to convince the people of New York to ratify the proposed constitution because most of the other states had already done so.
• The Impact of Fiscal Federalism on Financial Operations The ADA requirements influenced the fiscal and budgetary operations of American College Health Association in terms of enforcement of employment rights and observing the rights of employers and students with disabilities.
• Cooperative Federalism in the USA A vivid example of the implementation of the concept of dual federalism is the United States of America in the form in which they were initially formed.
• American Federalism: Why It Is Good for the Nation? In conclusion, it is necessary to note that historical, political, and cultural peculiarities of the United States make federalism the most appropriate type of governance for the country.
• The Major Eras of American Federalism The second category consists of the powers, which are “not delegated to [the national government of] the United States by the Constitution, nor prohibited by it to the states” and are referred to as the […]
• Fiscal Federalism: The Performance of Third-Party Implementers In the article ‘Public Performance and Management Review,’ the research question is “what can states do to maximize the performance of third-party implementers in the context of fiscal federalism?” The theory included a review of […]
• 10th Amendment & Federalism The 10th Amendment reads “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people”.
• The Constitutional Debate About Government and Federalism The government provided for by this document was weak and this necessitated drafting of the American constitution after Shays Rebellion in the spring of 1787. There have been major changes in the media and technology […]
• The Current State of Federalism in the 21st Century The outcome of the civil war of the 60-is of the XIX century was the doctrine of eternal union, recognizing the U.S.as a single state, created by the will of the entire American people, excluding […]
• Constitutionalism and Federalism in State Politics The Constitution highlighted the fundamentals of American federalism and testified the domination of the centralization. As it can be view, the problem of centralization and decentralization was of great concern in the course of the […]
• Federalism and Medical Marijuana Needless to say, United States faced political and social challenges as well, and the disputes over federalism and over the legal use of marijuana in medicine are still the most burning and controversial issues in […]
• Federalism and Gun Control in the United States 2 Each type of government possesses a set of duties and powers that it can exercise in the region, and the relationship between the levels is established in the Constitution.
• Federalism: Policy Issues and Recommended Changes The concept of federalism is a well-known political trend, and the emphasis on its promotion is the practice that leaders of many states adhere to and develop.
• Federalism of the United States The end result showed that the federal government was using publicly owned land, which in the end, belonged to all citizens of the United States, thus the local state government had to make sure the […]
• Federalism and Government Styles in the United States It is because the individual at the top is held accountable by the leaders of the local authorities. Top on the list is the fact that the division of power between the central government and […]
• Presidential Power in Hamilton’s Federalist No. 70 The analogy presented in the Federalist paper number seventy formed the basis of the present-day powerful executive in the United States.
• Judicial Branch in Hamilton’s Federalist Papers In this context, the purpose of the judicial branch should not be misunderstood and viewed with reference to the purposes of the executive and legislative branches.
• Aristocracy Assailed: The Ideology of Backcountry Anti-Federalism The author examines the views of the consensus historians and the attitudes of the anti-federalists towards the idea of American democracy.
• Contemporary American Federalism Dual federalism is a system characterized by a national government that only governs by the rules that have been laid out in the constitution, national and state governments that are supreme in their allocated spheres […]
• Federalist Paper No. 51 He states that all the different arms of the government, as per the constitution, should be independent of one another though they should work in the direction of achieving the same constitutional goals it was […]
• The Aggranoff’s Version of Federalist No. 44 Provision of the relevant leadership and administrative is by implementing policies and procedures that are standard in relation with what the nation anticipates. Additionally, evaluation of citizens’ performance in the work field and confirming whether […]
• Significance of Anti-Federalist Papers Therefore, it is important to note that the anti-federalist paper served as an alternative voice by helping to pinpoint spheres that needed to be rectified to ensure that the constitution that was in the process […]
• No Child Left behind Act: Federalism Concept Based on the three branches of a federal government, the legislative branch is bestowed with the responsibility of making the law.
• Federalism and Policy Formulation This should be made with regard to views of the stakeholders since every federal government’s view must be represented in formulating the policies.
• Current Issue in Federalism This has triggered the debate to shift from the state courts and legislatures to the federal courts with the interest groups looking for the best platform to present their case.
• Federalism and separation of powers In the American constitution, specific powers were bestowed upon the national government and in the tenth amendment of 1791, it stated “the powers not delegated to the United States by the constitution, nor prohibited by […]
• The Bill of Rights and the Anti-Federalist Concerns The Effects of the Bill of Rights Due to these facts and the essence of the Bill of Rights, it can be said that the efforts of the Anti-Federalists were not in vain.
• Costs and Benefits of Federalism Conflicts between the state and national government in the running of the United States is one of the major costs of federalism. Federalism leads to the formation of small political units that help in the […]
• Federalism in the United States The power assignments of the national government comprises of both implied and expressed powers. The Implied powers permit the central government to come up with decisions, which are not part of the expressed powers.
• Federalism System, Its Advantages and Disadvantages The system causes government to have control of itself because of great rivalry of power between the state and the nation.
• Federalist Paper Number 10 It is one of the most influential papers and it talks about faction and the role of government in regulating it as well as liberty. According to him, legislation should be put in place to […]
• The Case for a Federalism Amendment The main agenda here is the evenness or equality on how the powers are shared between the federal government and the states governments without interfering with the rights of their people. For instance, the states […]
• Modern American Federalism Development and evolution of democracy over the centuries has been focusing on devolution of central powers of government to increase independence of the local states.
• The Evolution of American Federalism Madison alone wrote over 20 articles on the subject and helped in the development and ratification of the US constitution and the 39th article as well as Federalist 51 is regarded as the most indicative […]
• An Overview of the Change of Federalism and the Great Depression
• The Implications of Elections for Federalism in Iraq: Toward a Five-Region Model
• A Look at Power Shifts in Intergovernmental Relations as a Result of Fiscal Federalism
• The Major Role Federalism Has Played in Our Government
• Understanding the Political Ideology of Federalism and the Role of the Federal Government
• An Initial Evaluation of Revenue-Sharing Arrangements in the New South African Fiscal Federalism
• A Comparison of Federalism and Anti-Federalism and Their Arguments
• Using Benefit-Cost Criteria for Settling Federalism Disputes: An Application to Food Safety Regulation
• Adjusting To Economic Growth In Toronto Amalgamation And Federalism
• Why Is Federalism Is The Best Option For The Philippines
• Advantages And Disadvantages Of American Federalism
• An Analysis of the Essential Principles of Federalism in the United States Government
• An Analysis of the Three Examples of How Federalism Which Evolved From Its Origins To the American Political System
• The Political Economy of Immigration Enforcement: Conflict and Cooperation under Federalism
• A Fiscal Federalism Analysis of Debt Policies by Sovereign Regional Governments
• An Evaluation of Federalism and the Civil War in America
• What Is Federalism And How Does It Relate To State Governments And Other Forms Of Governance
• Beyond National Standards: Reconciling Tension between Federalism and the Welfare State
• An International Multi-Level System of Competition Laws: Federalism in Antitrust
• Understanding Federalism Based on the Section: Picket-Fence Federalism
• The Possible Impact of Federalism in the Government of America
• The Tragedy of the Commons or the Curse of Federalism
• A Research on American History: Federalism in the United States
• An Overview of the Power Shift in Intergovernmental Relations as a Result of Fiscal Federalism
• The National Schoolmarm: No Child Left Behind and the New Educational Federalism
• The Relation of Federalism and Poverty in the US
• A Report on the Methods of the Constitution to Guard Against Tyranny: Federalism, Separation of Powers, Checks and Balances, and Equal Representation
• Walking in the Shadow of Pressman and Wildavsky: Expanding Fiscal Federalism and Goal Congruence Theories to Single-Shot Games
• A Description of Federalism as a Type of Government Where Power is Separated Between a National Government and Various Regional Governments
• A Description of the Federalist Papers and Federalism
• Asymmetric Information and Regional Transfers: Federalism versus Devolution
• The Role Of Federalism And Its Effect On American Government
• A Fatal Distraction from Federalism – Religious Conflict in Rakhine
• An Empirical Study of US Environmental Federalism: RCRA Enforcement From 1998 to 2011
• An Analysis of the Extent of the Influence of the Constitution and Federalism on the Political Culture of the United States
• An Analysis of the Federalism in the Government System of 18th Century United States
• An Analysis of the Political System of Federalism in the United States of America
• Adapting Federalism: Indigenous Multilevel Governance in Canada and the United States
• A Reconsideration of Environmental Federalism
• The Welfare Economics of Autarky, Federalism, and Federation Formation
• An Introduction to the Analysis of Federalism
• A Description of American Federalism as a Form of Government in Which the Constitution Distributes Governmental Powers
• Between the National Government
• The Lessons That The American Experience With Federalism
• The Institutional Basis of Secessionist Politics: Federalism and Secession in the United States
• An Analysis of Federalism and the French Canadians, an Ideological Anthology by Pierre Elliot Trudeau
• What Makes Strong Federalism Seem Weak? Fiscal Resources and Presidential-Provincial Relations in Argentina
• The Origin in Forming a Governmental Structure in Favor of the Newly Formed Constitution of Federalism
• Understanding the Concept of Federalism in Political Science
• The Use of Federalism in the Philippines Under the Administration of President Duterte
• Abortion: The Impact of Federalism and the Separation of Power
• The Role of Liberty and Democracy in the Enhancement of the Principles of Canadian Federalism in the Present and Future
• Bargaining for Fiscal Control: Tax Federalism in Brazil and Mexico, 1870-1940
• What Are Advantages and Disadvantages of Division of Powers and Checks and Balances and Federalism?
• Who Limits Environmental Federalism in Croatia?
• What Was the New Deal and Why Was It So Important in Terms of Federalism?
• How Has Federalism Changed the Nation?
• What Explains the Paradox of Tobacco Control Policy Under Federalism in the U.S. And Canada?
• Does Federalism Weaken Democratic Representation in the United States?
• What Makes Strong Federalism Seem Weak?
• Why Did Framers Choose Federalism?
• What Is a Benefit of Federalism?
• How Has Federalism Changed Since the Ratification of the Constitution?
• What Role Does the “Federalism Bonus” Play in Presidential Selection?
• Can Courts Make Federalism Work?
• How Does Federalism Protect Future Generations From Today’s Public Debts?
• What Is the 10th Amendment and Why Is It So Important to Understanding Federalism?
• Does Federalism Induce Patients’ Mobility Across Regions?
• How Has Indian Federalism Done?
• What Was the Great Society and Why Was It So Important in Terms of Federalism?
• Does Fiscal Federalism Promote Regional Inequality?
• How Have Federal Mandates Effected the Ideas of Federalism?
• Does Nature Limit Environmental Federalism?
• What Issues Most Influence Federalism Today?
• How Does Modern Federalism Work Effectively in a Complex, Networked World?
• What Are the Differences Between “Separation of Powers” and “Federalism”?
• Who Honors the Rules of Federalism?
• What Is Cooperative Federalism?
• Why Does Procedural Federalism Remain in the USA?
• What Is the Main Purpose of Federalism in Government?
• How Does Russian Federalism Work?
• What Did the Federalists Believe Threatened the Nation in the Election of 1800?
• Why Is Federalism Important to the Constitution?
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Federalist Papers: Primary Documents in American History

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The Federalist , commonly referred to as the Federalist Papers, is a series of 85 essays written by Alexander Hamilton, John Jay, and James Madison between October 1787 and May 1788. The essays were published anonymously, under the pen name "Publius," in various New York state newspapers of the time.

The Federalist Papers were written and published to urge New Yorkers to ratify the proposed United States Constitution, which was drafted in Philadelphia in the summer of 1787. In lobbying for adoption of the Constitution over the existing Articles of Confederation, the essays explain particular provisions of the Constitution in detail. For this reason, and because Hamilton and Madison were each members of the Constitutional Convention, the Federalist Papers are often used today to help interpret the intentions of those drafting the Constitution.

The Federalist Papers were published primarily in two New York state newspapers: The New York Packet and The Independent Journal . They were reprinted in other newspapers in New York state and in several cities in other states. A bound edition, with revisions and corrections by Hamilton, was published in 1788 by printers J. and A. McLean. An edition published by printer Jacob Gideon in 1818, with revisions and corrections by Madison, was the first to identify each essay by its author's name. Because of its publishing history, the assignment of authorship, numbering, and exact wording may vary with different editions of The Federalist .

The electronic text of The Federalist used here was compiled for Project Gutenberg by scholars who drew on many available versions of the papers.

One printed edition of the text is The Federalist , edited by Jacob E. Cooke (Middletown, Conn., Wesleyan University Press, 1961). Cooke's introduction provides background information on the printing history of The Federalist; the information provided above comes in part from his work.

This web-friendly presentation of the original text of the Federalist Papers (also known as The Federalist) was obtained from the e-text archives of Project Gutenberg. Any irregularities with regard to grammar, syntax, spelling, or punctuation are as they exist in the original e-text archives.

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