American Federalism as American Exceptionalism.

Americans paradoxically claim uniqueness for their political system, yet promote it as a model for others. This is especially true of federalism, the clearest example of American exceptionalism. At its inception, American federalism was produced in an environment closely approximating what scholars have since distilled as optimal conditions for fostering such a system. In other contexts, federalism has not flourished, because those preconditions are seldom approximated. Remarkably, American federalism has adjusted to meet drastically changed social, geographic, and political conditions, and the case for its continued adaptiveness and appropriateness remains strong. Although enclaved state differences in economics and religion are no longer a reality, these and other differences are widespread especially on a regional basis. Even on a statewide basis, cultural mixes keep the countty heterogeneous. The U.S. Constitution has been reinterpreted to permit rather more nationalized control in accordance with this p rocess of eliminating differences. Indeed, this is to the point where federalism could become legally problematic, explaining the Rehnquist court's recent decisions.

Daniel Elazar's love of America was never diminished by his commitment to Israel. He was a man of fierce loyalties-to his family, his Sephardic Jewish heritage, and his commitment to humanistic and religious values-but the joyous descriptions of cities of the prairie and the view of federalism from the states were deeply rooted and constantly refreshed. He conceived of and presided over an incredible number of seminars for the Liberty Fund, commuting as it were to Temple University from Jerusalem. None of these were closer to his heart than his federalism seminar which he presided over annually under Liberty Fund auspices. I attended four or five of those, as well as, two quite different programs he conducted under other auspices in Israel. At one of the sessions, critics argued that his interpretation of Judaism was an attempt to recast religion in the image of American federalism, a charge he did not accept, but which did not offend him. Federalism and Judaism were, like his family, constant companions in a lifetime relationship. In paying tribute to a remarkable builder, scholar, and teacher who by sheer will was never slowed down by weaknesses of the body, it seems logical to write of federalism, especially for the journal on that subject he founded in 1971.

The issue of American exceptionalism is one that has been most forcibly reopened in recent years by Seymour Martin Lipset, but it has been a recurrent theme in American history. It is encompassed in the nineteenth-century American swagger, in the sense of the classic American feeling of generating a newer, purer, and more natural society. Alexis deTocqueville captured this in his monumental Democracy in America, [1] but it was decades old by the time he reduced it to its most classic form.

Not every aspect of American life has been viewed as singular. But federalism has been regarded as typifying the society as well as being unique. It has served as a model both positively or, as in the Canadian example negatively, by conferring specified powers on the provinces and residual power to the federal government. Its historical primacy is relatively clear, but the degree to which American federalism is unusual remains open.

Sententiously, we could paraphrase Leo Tolstoy by suggesting that unitary systems are all alike, but federal systems are always minutely crafted to be unique. Neither aspect of that proposition holds up on close analysis. Regardless of theoretical central dominance under unitary structures, practical autonomy is always present, and political dangers threaten if that autonomy is altered. Federal structures may in fact be paper curtains hiding central control, as in the old Soviet system, or susceptible to overnight takeover, as the Nazis accomplished in federalist Weimar. Almost a century ago, John Burgess argued that a country with an income tax is no longer truly federal. [2] Certainly creeping national control changed the balance of authority during the nearly 100 years that followed the 1913 income-tax amendment to the U.S. Constitution. The last few years have, however, seen the flow of both political and legal authority move ever so slightly back toward state empowerment.

This essay attempts to evaluate the right of American federalism to the label of exceptionalism. We shall review the theory of exceptionalism and federalism to apply them to American federalism in world perspective. This is a venture Elazar would have been more qualified to undertake, but appropriate to this symposium issue.

AMERICAN EXECPTIONALISM

The central myth of American exceptionalism, that the nation was conceived in innocence, was dealt a severe blow in the wake of the reassessment of the Vietnam War. Somehow, the coalescence of the civil rights movement and the war protests during the late 1960s permitted and compelled a recognition of racial inequity in slavery and in the treatment of Native Americans. It was not truly new facts but also new acceptance of old realities that brought about acknowledgment of the stain of those policies similar to reappraisals of ethnic behavior in Japan, Israel, and Australia that occurred at roughly the same time.

A less sweeping analytic claim of American advantage remains. It was a society without the heritage of feudalism and, therefore, without a need either to continue to pay tribute to an aristocracy with diminished capacity, as in Great Britain, or to purge itself through violence, as in France or Eastern Europe. This analytic tool was developed by Tocqueville (especially Chapter 3) who suggested that class and social position had a diluted influence in American society. In the absence of aristocrats, functions exercised by them or governmental authorities in Europe were replaced by voluntaristic efforts, communitarian and largely local. To the extent that lawyers and clergy exercised some of those functions, they operated more as mediators and go-betweens and became part of society's social cement rather than part of the policy elite. Themselves drawn from diverse social origins, they undergirded plural sources of authority. Colonial localism and pluralism were not inherently federalist, but were compatible and even conducive to it. [3]

A second major claim for American exceptionalism is that its founding philosophy drawn from the Enlightenment remains almost intact today. Lockeanism is something of a civic religion. Informal rules of civil comity mediate social and political interaction. Problem-solving occurs almost spontaneously out of shared values. (The high point of this America-on-autopilot-of-Enlightenment was David Riesman's The Lonely Crowd. [4] This approach does not explain how such a unique culture is transmitted not just through generations but also to waves of newcomers. The process of transmission is of particular concern to examining federalism in part because of links to Elazar's notion of state political culture.

A third strand of claims to uniqueness emphasizes political institutions carefully crafted in their inception, modified ever so slightly by experience adapting to need while maintaining fundamentals. Obviously federalism is a product of that design. Among its features is a flexible wall of separation and cooperation between national and state authorities and structural protection for the states in the national system. Not only is there a guarantee of the boundaries of states, but also of equal suffrage in the U.S. Senate, a similar bonus in the electoral college, and the final veto by one-third plus one states in the constitutional amendment process.

Attributing uniqueness to the American political system seems a bit overblown. Indeed, scholars both at home and abroad have exhibited a bias for parliamentary government. American political scientists from Woodrow Wilson on have urged greater party discipline and structured reforms to achieve it. [5] Other countries have imitated aspects the U.S. system and, in many instances, improved on those aspects. Americans in turn have borrowed from other systems, suggesting that they are not as content with the work of the founding fathers as Fourth-of-July orations proclaim routinely.

The boundary line between nation and state has particularly been wavering, and change rather than rigidity has prevailed during U.S. history. It is clear that the attitudes and faith of the people have sometimes supported and sometimes demanded less legal and political autonomy for the states. State legislatures have little capacity to confront and supplant federal authority, but there are creative ways that states may outflank the federal reach. When there is a collision, real or imagined, between national and state domains, the U.S. Supreme Court has played a vital role. During the past half dozen years, it has again demonstrated that it is not yet ready to retire from the function of balancing the federal system.

It has been a common place of analysis that federalism is structurally protected mainly by political means since Herbert Wechsler [6] pointed that out half a century ago, building on John Marshall's opinion in McCulloch v. Maryland. [7] Subsequently, Jesse Choper argued that the Supreme Court should go farther and relinquish power to review congressional actions. This suggestion has not only been ignored, but clearly rejected through a series of decisions, some of them the most prominent ones of the last decade. [8] No doubt one of the reasons the Court has been impelled to reopen the 1937 "Leave it to Congress" approach has been the shift in senatorial elections, a shift that is as profound as that which occurred with the popular election of senators. Recent decades have witnessed a continual shift from local to national conflicts in senatorial races, especially with respect to funding. Before 1913, those senators chosen by legislatures clearly represented specific state interests. Popular election brought a less structured and less institutionalized Senate less protective of the states as states. The advent of political television has attracted wealthy candidates to run for the Senate because even an obscure senator is a major player. By and large, senators no longer rise through the party ranks and are often self-starters, centering their campaigns on their own media efforts. Less and less are they ambassadors from the states; more and more they represent an ideological coalition they construct with personal managers independent of local parties. If federalism is so easily transformed by a political circumstance-the extraordinary impact of television-then any analysis emphasizing the constitutional order and institutions as unique is suspect. In a sense, that is true of other sovereign claims as well.

Another claim to American exceptionalism is that America is an empire-nation. Geography has shaped the country, giving it defensible borders and non-threatening neighbors. It was blessed with immense resources. Further, it was not only the first "new nation" but also the first "common market." By the time of the Civil War, it was no longer commercially dependent on any one nation. It looked inward for trade and suspiciously avoided "entangling alliances." Its imperialism was relatively limited because hegemony in the Western hemisphere could mainly be taken for granted. As the rising industrial power in the world, it could afford to go its own way with respect to industrial forms and to its social mores.

Another major explanation lies in the notion of America as a "nation of nations" and a melting pot of cultures. From the beginning, there was diversity, and that diversity has grown regularly and even accelerated after immigration began to be controlled in the twentieth century. Soon there will be no majority grouping. If trends continue, even WASPs (whit Anglo-Saxon Protestants) may not even be the plurality. Waves of immigrants have meant that Hispanics and Chinese whose families have been in the United States for well over a century welcome newcomers from their grandparents' families with a culture different from that described in family legend. Internal migration-blacks moving to the North during and after World War I and since, white businessmen moving south in the 1970s-continually churn American society. Change is always in the air, and a neighborhood with a different culture is a few blocks away. American cities are characterized by segregated enclaves, but those are usually transcended easily. Few s ocieties are as permeable. None contain the mix that characterizes the United States.

FEDERALISM IN THEORY AND PRACTICE

What we now call confederations have a long history. [9] Essentially, they were and are leagues or loose agreements of city states (stande), clans, or tribes that band together under pre-specified conditions to exercise specific functions. These usually were military in nature, but financial arrangements often are an aspect, especially with respect to customs unions orjoint coinage.

Clearly, there were Greek leagues of various types with varying success. The governance of the twelve tribes of Israel prior to the installation of Saul as King seems to have been of this genre, as indicated in the account of the reaction of the concubine at Gibeah (Judges, Chapters 19ff). The Hanseatic League was at least a mercantile pact, but most probably also a confederation of limited governmental powers. [10] Of course, the Swiss confederation looms as the most enduring.

At the time of the American Constitutional Convention, the terms "confederal" and "federal" were used interchangeably, with the former term more common. Throughout the Philadelphia meeting, those terms were contrasted with the "national" government, which the majority of delegates sought to create. In the ratifying phase of the constitutional process, the proponents repositioned themselves as "federalists" and their opponents accepted the identification as "anti-federalists," "democratic Republicans," or "states' rights advocates." The Federalists were then able to employ a more favorable rhetorical symbol than "national" or "central" in their advocacy, a major propaganda victory. [11] This rhetorical device remains and sometimes corrupts contemporary usage; Americans refer to the "federal" government when, strictly speaking, they mean the national government in the federal system.

But Publius, in staking out the claim to the term in The Federalist, also advanced a theoretical basis for the nomenclature. The authors pointed out in numerous ways that the Articles of Confederation not only specified limited purposes for the central authority, but also limited its mechanisms. It could act only by instructing the states to observe constitutionally based obligations. The new Constitution permitted direct control over individuals, a new form of government that was plenary, though only in specified domains. As Marshall so cogently distilled the argument in Gibbons v. Ogden (1821), the new system created a government in which "Congress, though limited to specified objects, is plenary as to those objects ... as absolutely as it would be in a single government having in its constitution the same restrictions." [12]

It was a new form of government requiring a new label. This ingenious new structure not only allowed new nomenclature, it required it. This usage was not as manipulative then as William Riker suggested. Indeed, at times, The Federalist uses the older language in which "federal" and "confederal" are confuted. Thus, Federalist 39 observes:

The proposed Constitution, therefore is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are dawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and , finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

The reasons for choosing the new form, federalism, over confederalism emerge from The Federalist. Confederalism is an unstable system subject to the vagaries of the smallest participating unit. It is like the European Community, dependent much more on diplomacy and horse-trading than its procedures for ultimate decision-making. It requires consensus when what might be sought is resolution, however much consensus might be desirable.

Why then federalism over a unitary government? In A. V. Dicey's terms, federalism permits unity without uniformity. The central authority is assigned its domain, the questions deemed necessary for resolution, while the components may go their diverse ways. Localism is permitted without raising questions of logical incongruity or requiring intricate measurement to justify adapting to local conditions.

An alternative to federalism in unitary states is to create regional or local units subject to the hegemony of the national government. Such regionalisms usually do not create a sense of genuine localism and are subject to reorganization both in their extent and in their boundaries at the mercy of national politics.

Another alternative is de facto or legal acceptance of existing localisms based usually on tribal or confessional grounds. This delegation does not imply limits on the central authorities, but merely follows a path of least resistance in governance. The best known example of this is the millet system under the Ottoman emperors. They delegated to religious groups virtually complete authority over family life within that group and most property rights between members of that confessional identity. The system was a hodge-podge across confessional lines and particularly provoked anti-Turkish feeling when issues involved a legally privileged Turk. In a modernistic society, transconfessional issues arose with greater frequency, further embarrassing a fragile system. It did not produce loyalty to the underlying regime, a fundamental problem, and it is difficult to see that any such system would do so.

Modern states emerged initially mainly from conquest, an extension of the domain of an armed force. To hold the state together, shared system values, a common history, and a sense of a common fate has proved necessary. These in turn break down elementally to involve a common language, religion, and a real or imagined ethnicity. In conquered states, the ruler's religion was usually the norm, though many a ruler concluded that "Paris is worth a mass" and accepted the faith of his subjects. Languages were standardized around the dialect of the main urban center of the coordinating power. Ethnicity was created with a real history or a mythological one and has always been a very difficult variable.

On the whole, conquest has been easier than consensus. Alexander the Great, Atilla the Hun, and Genghis Khan all illustrate this. In the twentieth century, what was unusual was that both unitary states and federal ones largely emerged from the disintegration of empires. [13] Federalism's most important era came after World War I, but those rearrangements have also disintegrated in turn. The products of the Second World War, the Malaysian Federation and the African confederations, have not fared better. The Malaysians cast off Singapore fearing that the heavy Chinese population would be too effective, and Africans have not readily shared power with the remnants of colonialism or even as to their own tribal divisions. Thus, paradoxically, nation-states have become more ethnically cleansed and have multiplied in number, even as the logic of international interrelationships might suggest the opposite would occur.

The enduring federal estates are largely of older vintage and mainly remnants of colonial British rule. Their components had parallel experiences with a common language, similar but not identical legal relations with the mother country, and common military structures. India and Malaysia-post-World War II federalisms, though experiencing breakdowns in the form of Pakistani separation and Singapore exclusion-have also retained federalism in the remaining components. Germany has restored the federalism of its empire in vigorous form. Ostensibly, some remnants of the old Soviet Union and the rump of Yugoslavia also remain federal. Other countries have elements of federalism, and the United Kingdom's recent efforts at devolving power to Scotland and Wales constitute an interesting move toward federalism after a longish period of its decline.

Still, on the whole, federalism is not a rapidly expanding system, or one with robust expectations. The failure to achieve inter-racial harmony in Africa through federalism is part of the general failure of most political institutions on that continent. That still diminishes optimism. The further breakdown of Czechoslovakia and Yugoslavia and such phenomena as the fragility of the Canadian union, and the limited success of Basque autonomy as a pacifier and an integrator have all focused attention from the political sphere to looser leagues formed around economics.

Politically, the narrow ethnically limited and constricted nation-state is thriving, and many more narrow claims keep surfacing. In the past, the economic consequences and the need for a broader mix of resources than tiny puristic

states could have access to deterred many efforts at nationalism. But regional economic unions provide a cover for narrow political ones; even as the Common Market breaks down economic balkanization, it reduces the cost for political balkanization. Current emphasis on transcending the unitary state is therefore something of a paradox. The hope is that a neo-functional confederation can evolve into a complex and structured federal order.

AMERICAN FEDERALISM: UNIQUE AND SIMILAR

It was not only with respect to the creation of a new kind of system and the invention of a new terminology that American federalism can claim early uniqu eness. A whole new order of firsts can be asserted. Some of these involve, in part, semantic tricks common in sports claims, such as "most hits ever recorded against a left-handed pitcher in the seventh inning of a World Series game." Still others might be altered by new historical evidence, such as recovery of Aristotle's collection of Greek constitutions or by a deeper understanding of Medieval complex feudal relations. However, it would seem reasonable to see American federalism as creating the first constitutionally protected and judicially enforced common market, the first system to have entrenched clauses protecting and undergirding federal responsibility, and structurally embedding them, as Hart and Wechsler argue, in the national political processes. The Senate is an assemblage of the states, even today, and the electoral college is a hybrid of fede ral and populistic principles. The amendment process is hostage to the states. Furthermore, as Rufus Davis points out, the federal Constitution sets up individual revenue-seeking by the two orders of government. [14 Perhaps as Burgess argued, this will eventually subordinate the states, but that is a prediction not really vindicated a century after he made it.

In its initial stages, American federalism had immense advantages. The states shared a similar heritage. They largely spoke a common language, though even then some enclave groups did not. English rule had prevailed and shaped all of the states in the lifetimes of their inhabitants. All of the states had jointly engaged in an uphill battle for independence. Important religious differences were mitigated by the dominant Enlightenment philosophy of tolerance permitting, even within the states, established religions with exemptions for individual conscience. The sharing of Enlightenment values not only finessed the religious issue, it also expedited agreement on governmental forms and the boundary line between state and society. Shared values, shared history, and military achievements buttressed economic pressures toward unity and fostered the most important factor for creating and preserving federalism-mutual trust. [15]

The factors operating to retain diversity were also clear. The religious factor was hardly minor. Many of the colonies had been created on diverse and antagonistic principles. There were several different established churches. The economics of the states were also quite different, and they evolved in different and, as the Civil War proved, in fundamentally different ways. Some states were organized around small agricultural units and small industries; the plantation and larger farms prevailed in others. A true national government would have had the burden of proving it could accommodate all the niceties of those distinctions rather than providing the analog of the "night watchman state."

Historically, the nationalist impulse all but exhausted itself in securing approval of the federal Constitution. Although continuously pushed to the fore by Marshall and the Supreme Court, national imperatives were largely swamped by Jeffersonian values. It was at a conference organized by Elazar that I asked the half-dozen rather prominent American historians whether Federalists or Anti-Federalists had ultimately triumphed in the hearts and minds of today's Americans. They did not hesitate to affirm that it was clearly the Anti-Federalists. While Federalist programs have often been enacted under Anti-Federalist sponsorship, the general tenor of discussion is that of the Anti-Federalist.

An important key to Federalist legitimacy has been just that gradual, voluntaristic, and even negatively phrased approach. The process of incorporation of the continental union took a century and a quarter, culminating in Arizona's admission as a state in 1912. The remarkable admissions of Alaska and Hawaii took almost another half century. Arkansas became the twenty-fifth state in 1836. Minnesota, which, as the thirty-second state admitted, was just over the halfway point in the process, joined the union on the eve of the Civil War in 1858. The geographic and population centers of the new system moved westward slowly.

Political power inched westward as well. The decision of the Supreme Court that states once admitted could ignore invidious conditions attached to the admission guaranteed equality of states as states. [16] The complex nature of the population in the United States has also given every region and even the smallest state some role in national politics unlike, for example, Canada where political majorities have been produced in the same two provinces over its entire political history. Obviously, there was a breakdown in the American system in 1861 and smaller crises on other occasions, but by and large, political power and a sense of efficacy followed the majority proliferation and the flag rather faithfully as these went westward.

The gradualness of the new governmental building blocks was paralleled by the gradualness of the process of bringing in diverse populations. The arrival of Irish immigrants was a source of turned up noses in Yankee territory, but the Irish spoke English, and their Catholic religion was shared with the established church in Maryland and old French enclaves. The Germanic and Central European emigres of the 1840s were non-English speaking, but their exile was due to the failure of revolutions based on Enlightenment values. They brought with them a strong spirit of civic responsibility and a wave of urban reform to Cincinnati, Milwaukee, and San Francisco. Only after a century of those amalgams did the new mass immigration of ltalians and East Europeans bring populations with dramatically different histories on democratic governments and tolerance into the mix.

All of these groups did not settle randomly, but bunched up in regions and in communities. The effect was, in fact, to reinforce diversity of population and to create a counter to the homogenization created by economic pulls. Even as a national industrial system was being developed, cultural differences were being imported to sustain state, regional, and community differences. The new immigrants did not constitute the only migration. Yankees flowed northwest, Southerners southwest. In the twentieth century, blacks moved to the North, often after a weigh station in a southern urban setting. The Mormons made Utah a unique place and settled in relatively thinly populated states like Idaho as well.

To speak of all of this as representing a "homogenous population" living in isolation as James Q. Wilson suggested in a recent article is simply to use those terms in a very special way. Wilson admitted as much but noted correctly that immigration is different from invasion, not the least in the suddenness of the latter action. [17] Obviously, the American experience of this influx of immigrants was neither as traumatic as occupying forces, nor as difficult for host or guest as massed refugees would be. While majorities proclaimed the need for "hyphenated Americans" to transform themselves, to plunge themselves into the melting pot, Americans came to accept a more realistic view of gradual acculturation. Many came to welcome the richness of cultural pluralism so long as the majority culture was shared and publicly dominant. The key ingredients were seen as the public school, the common language, and the dominance of law as the heart of a national consensus and a national system. [18]

Immigration and the new internal migrations supplemented earlier state differences and in many instances swamped them. Maine and Vermont have been altered decisively, and Yankee culture is a minority one. The influx of northerners into Florida makes for vast contrast in different regions of that state. Such patterns have been operative throughout American history. Because migrants settle in patterned communities, regions and states retain differences even as they are transformed.

The economy and the media are, by and large, nationalizers and homogenizers. However, industries themselves are organized on different principles, and their work arrangements and their resource requirements differ widely. Then too, industries concentrate in different areas of the country. Except for national television, the media is two-layered. The United States still does not have a national newspaper, although the New York Times and USA Today have made great strides in that direction in their diverse ways.

The most fundamental transformation was from a society that was a remote supplier of raw goods to the world's greatest productive and industrial system. It has also emerged as the world's premier market and consumer. Luckily, these two went hand-in-hand (a useful summary of the work of American economic historians on this point can be found in Jeffrey Madrick, [19] although his analysis now seems awry). That history, too, was one of gradualism and perpetuation of regional differences, though, as noted, sometimes with transformations. The Industrial Revolution came to America over the entire nineteenth century. The relative isolation of the industry and the market was itself a protection and allowed the government to nurture that protectionism. The growth of the internal market fostered productivity and permitted a high reward for labor, which was scarce. This attracted immigration which, of course, expanded the market in a series of repeated cycles. Sectoral advances were uneven and built on existing resourc es.

When, for example, oil from abroad largely displaced local supplies and new methods of raising and slaughtering meat were developed, communities turned to other resources or other industries. Dispersal of assembly lines, especially for automobiles, eventually reduced regional differences, but during the nineteenth century, industrial growth involved concentration of industries and accentuated regional differences.

Modern merchandising has proved the ultimate homogenizer. McDonald's, Wal Mart, Home Depot, and their peers continuously make most American communities and their main street indistinguishable at first sight. Small-margin food chains are still dominated by regional companies, but retailing is increasingly national. Additionally, and potentially even more dangerous to federalism is computer-based purchasing, which weakens state control over sales taxes. So far, interstate purchasing remains a way out of paying state use taxes, the disguise for an interstate sales tax. Efforts by catalogers to end their disputes with the states-L. L. Bean was the kingpin-by collecting the sales tax met such fierce resistance from consumers that the interstate dealers decided to resist state government rather than comply. If, as expected, sales grow exponentially, the states will probably have to turn to Congress for help on collection and diminish their independent source of revenue. Already piggybacking on the federal income t ax for their own income tax collections, the states would become more dependent, and as Burgess and Davis suggested, endangered.

The fundamental changes in the economy inevitably reshaped American federalism both legally and informally. The drift to greater national authority was hardly monotonic and only at times heavy-handed. There were a few constitutional amendments, many more reinterpretations of the Constitution by the Supreme Court, and even more important was the emergence of new political expectations, such as presidential intervention to resolve serious management-labor disputes. Such practices laid the foundation for nationalization of most labor relations in the Wagner Act of 1935.

Among the major doctrinal changes were early restoration of congressional supremacy over immigration practice, the casual reading out of constitutional law the requirement that states must acquiesce to federal land-acquisition as provided in Article I, Section 8, and the fundamental decision in Ex ParteYoung [20] that federal courts could exercise direct control over state officials, even though the Eleventh Amendment prevented direct control over states. The commerce clause was also reinterpreted to allow broad control over regulatory processes but rather narrow authority over most economic regulations. This dual line of authority was both odd and ultimately untenable inasmuch as economic integration was the driving force behind the greater national control. Obviously, the justices thought it was their duty to try to preserve states' rights federalism as best they could until they were driven from that position by the effects of the Great Depression and the New Deal victories that led to drastic personnel c hanges on the Court. [21]

From 1937 on, the power of Congress to shape federalism was assumed to be paramount, essentially a roadway to the unitary state. As noted earlier, Jesse Choper, the former dean of the University of California, Berkeley, Law School, even suggested simplifying that reality by ending Court power to hear cases centered on national versus state constitutional boundaries. [22] That advice was not only ignored; the late 1990s has witnessed a stunning reversal of the Court's old doctrine. The attempt to revive federalism, which a leading scholar earlier compared to pasting leaves back on trees, [23] has so far been relatively mild. The Court has invalidated extreme and strained uses of congressional authority. In United States v. Lopez, [24] it invalidated a federal law making it illegal to possess guns near schoolyards; in 2000, it threw out a law that permitted abused spouses to sue for damages in federal courts. [25] As Judge Robert Bork suggested, these involved congressional efforts to use the commerce power in cases that had neither commercial implications nor any actual flow in interstate channels. Congress assumed authority simply because the underlying problems recurred in most or all locales. One can contrast the civil rights legislation of the 1960s (based alternatively on the Fourteenth Amendment) where the government was at pains to demonstrate consequences for interstate traffic and commerce of discrimination in public places. [26]

A potentially more pregnant reevaluation is the denial of state employees' standing to sue states for enforcement of federal minimum-wage laws. The Court held in Alden v. Maine [27] that the Eleventh Amendment prohibition on suits against the state prevented Congress from authorizing individual suits of this type. However, even the majority opinion noted that the Court was not ruling on the question of federal government suits to enforce wage regulation, including nominal ex rel. arrangements where the day-to-day litigation would actually be handled by the private parties. This line of cases, which began with Seminole Tribe of Florida v. Florida, [28] clearly restricts Congressional authority to confer rights of litigation breaching sovereign immunity. But it is not clear how far this goes. In its decision in Kimel v. Florida Board of Regents, [29] the majority clearly distinguished congressional power to enforce the Fourteenth Amendment from other more general provisions, leaving it probable that the Congr ess can authorize civil rights litigation. Only time, a few presidential elections, and changes in Supreme Court personnel will show whether this is a true revival of dual federalism or simply a shot across the bow to remind Congress that we still have a federal system and that members of Congress should manifest some restraint.

A parallel development has drastically altered national-state relations, but constitutional conservatives have reluctantly accepted most of its consequences. Since 1925, the Supreme Court has concluded that the states must honor virtually all of the U.S. Bill of Rights protections and, for the most part, conform to the same standard as the national government. This well-known process has been gradual and by and large popular, though specific actions have from time to time been controversial. In race relations, this has led to desegregation and affirmative rights based on the Fourteenth Amendment applied to the states. Anti-censorship and media freedom, freedom of religion, and criminal justice processes have been the major domains both of such nationalization and of controversy. Conservative efforts at roll back such decisions have been much more modest on these issues, mostly hinging on the actual standards applied to the states rather than on the issue of Court control. Judge Bork, for example, has indicat ed that he would have resisted the major shift that occurred in the years 1925 to 1960 but that reversal today would be socially disruptive and unwise. Even in the field of criminal justice, Chief Justice William Rehnquist, who had severely criticized the Miranda warnings in dissents over the years, led the Court to accept that rule as part of American folklore in a 7-2 decision [30] that seemingly puts to rest decades of criticism. Only in the area of separation of religion and state has there been a drastic pruning, while in the field of abortion, open clashes are common on the Court.

CONCLUSION

The claims of federalism are two-fold. Decentralization is often more efficient both in rule formation and in enforcement. Rules can follow a decision process with far fewer layers of communication. Decentralization permits more flexible ad hoc formulations that would plunge a central decision system into defensive complexities requiring controversial justification for differences in treatment. As Louis Brandeis argued, an individual state can experiment more easily with less worry about the consequences or the costs of changing back after any failure.

But federalism may also be defended even when less efficient simply because diversity reduces social friction and autonomy promotes loyalty and legitimacy. To the extent that the "new world order" of economics moves inexorably toward uniformity within a society, then the case for federalism hinges more and more on efficiency alone. There are central decisions on when and where to decentralize, but these must be justified externally. When the decision whether to decentralize is solely a question for the central government, it is problematic that federalism is still there. A federal tradition will usually perpetuate established boundaries more surely than a traditionally unitary government. However, governmental efficiency is difficult to judge, especially in a federal system; this permits easier dissolution of those bounds and drifts toward a unitary structure.

The American situation in 1789 clearly was a textbook case for federalism; indeed, it has served the world as the textbook case. Communication and transportation endowed it with the qualities for a diffuse system. Although underlying elements of similarity (especially language) moved in one direction, differences (especially religion and sharply different economic units) pulled it in another. Federalism was an ideal vector.

Today, the case for American federalism, though sociologically weaker, remains structurally strong. The national government has generally been seen in recent decades as overblown and unimaginative. For example, two agencies with extensive and minute administrative responsibilities, the U.S. Department of Housing and Urban Development and the Veterans' Administration, have been sources of embarrassment over inefficiency and corruption through several administrations. The national government is commonly perceived as extending its functions beyond its management capacity. Just before Dwight D. Eisenhower's reelection victory in 1956, the Kestnbaum Commission reviewed intergovernmental relations and basically concluded that only two states had bureaucracies as efficient as that of the national administration. Today, that number would be indisputably much larger.

Clearly then, the alternative to state government, if one were being considered, would be regionalism because true centralization would seem to multiply those inefficiencies. Whether an artificial devolution would be helpful is problematic. To be sure, computerization and human techniques expected in its wake might change that balance, but we are not there yet.

On the other hand, diversity is continuing. On the most crucial aspect that tests federalism, according to Karl Deutsch, language, it is arguable that there is more rather than less such diversity at the present time. Certainly religion has become more variegated, and there is a stronger contingent of indifference than in the past. Yet there is a general agreement on a common language and the predominance of English, which has been reasserting itself together with a powerful tradition of tolerance that overwhelms our sectarian divisions. Economically, there is a dominant national ethos, but miners, sheep herders, and cowboys of many types have their enclaves, as do stockbrokers, auto salesman, computer manufacturers, software suppliers, exporters, and importers. If "the business of America is business" as Calvin Coolidge suggested, that business is not monolithic and still not dispersed uniformly. Immigrants settle largely in localities pretested by compatriots. Small-business ventures flocked to fill voids i n southern cities and in a seemingly moribund Los Angeles. But the small businessmen of the South were interested in bringing northern practice to an area that had lacked initiative, while the entrepreneurs of Los Angeles in the 1980s and 90s tended to be immigrants from abroad who saw niched opportunities to benefit from what they were assuming was a temporary drop in the economy. Silicon valleys cluster around schools of technology. All of these disparities support federalism and diverse communities that Americans cling to for both good and bad social reasons.

While, at some level of generalization, the case for American federalism today can be said to be similar to that at the onset, what is remarkable is the degree to which the particulars have altered over time. The South is no longer the bastion of chivalry, free trade, or rural values and certainly not of the Democratic party. Much of the Middle West moved from small agriculture to factories in the field or to assembly-line-centered areas and then to declining industries (the rustbelt) and is now refiguring itself as a financial and entrepreneurial center. America remains diverse in infrastructure and culture, but any mapping shows that like population cultures have migrated and changed over time.

States themselves have only a minimum of historical authenticity. Lawrence Friedman has long asked his students the question: "How many states do not have at least one straight line as part of their boundaries?" as compared to European nations with a similar characteristic. The point is that American state boundaries, except for Hawaii, represent artificial constructs established by grants from the king or the Congress or by war and purchase with a straight line as some sort of compromise. European boundaries generally follow rivers or coasts.

To be sure, artificial boundaries over time have the ability to constrain and create new realities. In the United States, regional differences not only are partly created by geography but also by related variables such as climate and resources. Even these vary over time. The growth of metropolitan areas illustrates that point with their creation of interstate newspapers and TV stations that burst state seams. Of course, international metropolitan districts also can be found, but hardly in great numbers involving major percentages of the population as it is becoming in the United States.

The result of change and diffusion might well have endangered federalism or caused instability, but the gradual and generally piecemeal nature of the changes seems crucial in explaining their absorption. As James Q. Wilson argued, [31] even waves of immigration have less disruptive consequences than wars. The study of federalism is replete with culinary images-layer cakes, marble cakes, and the like. The two-century transformation of American federalism has resembled an emulsion, like mayonnaise, where smallish alterations applied cumulatively allow the mixture to be stable, even though an immediate infusion of all the new materials would not have been possible.

It is this transformatory process that seems to be unparalled in other federalisms. Elsewhere, the different features of the constituent parts-the provinces or Lander-have remained more or less fixed over time. The populations have been much more stable. The dynamism of America s component units constitutes a challenge to Elazar's delineation of state cultures, as he was expressly aware from the beginning. [32] As he noted, states even differ in the degree of integration of political culture, as southern and northern California and Florida are very obvious examples of within-state differences caused in part by population migrations. As the cultures change sometimes with new populations, new patterns can reflect new populations. Elazar refers to this as the "geology" of culture. No doubt the highly contingent specifications that have consequences in a shifting reality account in part for the fact that Elazar's classifications of the states have proven more useful as exciting insights into the politics of stat es and have proven less useful as a research tool than originally hoped.

In any event, American federalism emerges as exceptional, and not only in its inception, inventiveness, and derivation. It has also been as truly exceptional in its emergent qualities, its ability to maintain itself, and to transform and recreate itself as a system both legally and in fact.

Samuel Krislov shares the John Marshall Distinguished Fulbright Chair in Political Science at the Budapest University of Economic Sciences and Public Administration. He has taught at the University of Minnesota since 1964 and has served as president of the Law and Society Association and Midwest Political Science Association. A Guggenheim, Russell Sage, Ford, Bush, and Rockefeller Foundation grantee, he publishes extensively in constitutional and comparative law. His latest book is How Nations Choose Product Standards and Standards Change Nations, University of Pittsburgh Press.

(1.)Alexis de Tocqueville, Democracy in America, trans. Henry Reeve (New York: Atheneum, 1945).

(2.) John W. Burgess, Recent Changes in American Constitutional Theory (New York: Columbia University Press, 1903).

(3.) Tocqueville, Democracy in America, pp. 61ff.

(4.) David Riesman, The Lonely Crowd (New York: Doubleday, 1951). See also, Louis Hartz, The Liberal Tradition in America (New York: Doubleday, 1955).

(5.) Woodrow Wilson, Congressional Government (1885; reprint, New York: Meridian Books, 1965) and American Political Science Association, Toward a More Responsible Two-Party System (NewYork: Rhinehart, 1950).

(6.) Herbert Wechsler, "Political Safeguards of Federalism," Selected Essays on Consdtudonal Law, ed. Association of American Law Schools (St. Paul: West Publishing, 1963). Slightly different versions were published in 1954, 1955 and 1961.

(7.) McCulloch v. Maryland, 4 Wheat 316 (1819). This case is also the genesis of Harlan Stone's famous footnote 4 in U. S. v. Carolene Products, 304 US 144 (1938) as Wechsler notes.

(8.) See Choper's argument for cabining judicial review largely to civil liberties, Judicial Review and the National Political Process (Chicago: University of Chicago Press, 1980). In my view, the work underestimates the balancing effect of normally dormant powers, strategically employed as a gyroscopic device that runs throughout American constitutionalism.

(9.) I draw generally on Gianfranco Poggi, The Development of the Modern Stale (Palo Alto: Stanford University Press, 1975) and Talcott Parsons, The Evolution of Societies (Englewood Cliffs, NJ: Prentice-Hall, 1977).

(10.) Hendrik Spruyt, The Sovereign State and Its Competitors (Princeton: Princeton University Press, 1996).

(11.) "William H. Riker, "The Heresthetics of Constitution-Making," American Political Science Review, 78 (December 1982): 1-16.

(12.) Gibbons v. Ogden, 9 Wheat 1 (1824).

(13) On the emergence of post World War II nationalisms, see especially Rupert Emerson, From Empire to Notion (Boston: Beacon Press, 1962) and Ernest Gellner, Nations and Nationalism (Ithaca, NY: Cornell University Press, 1983).

(14.) S. Rufus Davis, The Federal Principle (Berkeley: University of California Press, 1976).

(15.) See especially, Karl W. Deutach, et. al., Political Community and the North Atlantic Alliance (Princeton: Princeton University Press, 1957).

(16.) Coyle v. Smith, 221 U.S. 559 (1911).

(17.) "James Q. Wilson, "Democracy for All," Commentary 107 (March 2000): 25-31 and (June 2000): 13.

(18.) Horace M. Kallen, Cultural Pluralism and the American Ideal (1920; reprint, Philadelphia: University of Pennsylvania Press, 1995).

(19.) Jeffrey Madrick, The End of Affluence (New York: Random House, 1995).

(20.) Ex Parte Young, 209 U.S. 23 (1908).

(21.) See especially Edward S. Corwin, "The Passing of Dual Federalism" in A Constitution of Powers in a Secular Slate (Charlottesville, VA: The Mitchie Company, 1951).

(22.) "Choper, Judicial Review.

(23.) "Leonard D. White, The Nation and the States (Baton Rouge: Louisiana State University Press, 1953).

(24.) "United States v. Lopez, 514 US 549 (1995).

(25.)"United States v. Morrison, 146 L Ed 2d 658 (2000).

(26.) Comments on Lopez are from a lecture by judge Bork at the Center for the American Experiment, St. Paul, Minnesota, in May 1995, and repeated subsequently on TV talk shows and interviews. See generally Robert Bark, The Tempting of America (New York: The Free Press, 1990) for a surprisingly mainstream and characteristically trenchant account of the history of commerce clause and due process litigation.

(27.) Alden v. Maine, 119 S. CT. 2240 (1999).

(28.) Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1966).

(29.) Kimel v. Florida Board of Regents, 145 L Ed 2d 405 (2000).

(30.) Dickerson v. United States, 147 L Ed 2d 405 (2000).

(31.) Wilson, "Democracy for All."

(32.) Daniel J. Elazar, American Federalism: A View From the States, 3rd ed. (New York: Harper and Row, 1985) as well as his The American Mosaic (Boulder, CO: Westview Press, 1994). American Federalism has remained for decades one of the most influential volumes both in studies of federalism and in political science generally.

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Author:	Krislov, Samuel
Publication:	Publius
Article Type:	Critical essay
Geographic Code:	1USA
Date:	Dec 22, 2001
Words:	8058
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