Alison LaCroix, "Commandeering Federalism"

Yesterday, Assistant Professor of Law Alison LaCroix published a guest post over at Balkinization. The first couple of paragraphs are below, and you can read the entire post here (you may also be interested in listening to Prof. LaCroix discuss federalism in the context of the push for states' rights on the University of Utah's public radio station).

What light can the history of federalism shed on modern-day constitutional debates? Quite a lot – beginning with the important point that the search for the “real” federalism may in fact be a misguided quest. This is not to say that the idea of federalism is simply an empty shell or a rhetorical flourish devoid of content. But an understanding of American federalism’s beginnings does suggest that the Supreme Court’s recent “federalism revolution” has been neither revolutionary nor about federalism in any historically informed sense. Instead, the Court’s federalism doctrine has unthinkingly replicated centuries-old debates, even as some justices claim to have divined the concept’s one true meaning.

As I discussed in a previous post, the central tenet of federal ideology as it emerged in the late eighteenth century was a conviction that multiple levels of government could – indeed, should – exist within a composite polity such as British North America. Federalism has had a core of stable meaning since its first American incarnation as a doctrine of colonial resistance to the power of Parliament, but that meaning has centered on a commitment to governmental multiplicity itself more than a vision of a particular distribution of governmental authority. We might term this the first lesson that the history of federalism offers for modern constitutional doctrine: a reminder that overlap, concurrence, and multiplicity are and have always been the background principles of the American federal republic, not a temporary way station to be visited on the way to a more perfect – static, settled – national structure. The states may be laboratories, but we should not assume that the experiment will be able to produce a magic structural formula.

Read the entire post here.