Thank you very much, Professor Hamilton, for this tremendously thoughtful and incisive review of my book. These are extremely helpful comments, and some of them touch on new projects that I am currently working on, so I’d like to offer a few thoughts in response.
As Professor Hamilton notes, the book differs from much previous scholarship focusing on the ideology of the founding period because it extends into the early Republic. As I continue to think about the issues in the book, I’ve become even more convinced that the early republican and antebellum stories are the crucial next chapters in the story. One of the book’s principal claims is that a normative vision of divided sovereignty predated, or at the very least accompanied, the rise of popular sovereignty that Bernard Bailyn, Gordon Wood, and Edmund Morgan, among others, have placed at the center of the political and legal changes that occurred during the Revolutionary and founding periods. This vision of American government as designed to be divided clearly began as a response to the eighteenth-century Anglo-American fear of imperium in imperio, or dominion within dominion. By the early nineteenth century, this commitment to divided government, and the difficulties of building institutions to instantiate that theoretical commitment, had become the central question of American law and politics. We often view early republican and antebellum debates through the lens of state-versus-federal power, but I would argue that that issue was in fact the contemporary incarnation of the bigger, unsolved question of how governmental authority was to be divided between polities – and which institutional actors would get to make that determination.
One good example of early-nineteenth-century Americans’ struggle to give real, concrete meaning to the theoretical commitment to multilayered authority can be found in the controversy over federal jurisdiction in the 1810s and 1820s. Many members of the founding generation had seized on a division of governmental power along subject-matter lines as an escape hatch from the imperium in imperio problem. For the early republicans, this theoretically tidy separation became fraught with controversy as they attempted to apply it to specific issues – e.g., federal funding for internal improvements such as canals and turnpikes; tariffs and other forms of taxation (which, according to the terms of Article I, was understood to be a concurrent federal and state power); and, perhaps most fundamentally, the jurisdiction of the lower federal courts.
Federalists such as Chief Justice John Marshall, and federalists in spirit such as Republican justice Joseph Story, argued that the union must be cemented both by federal oversight over state courts (in the form of appellate review by the Supreme Court) and by federal courts with original jurisdiction over a broad array of issues that they conceived of as necessarily federal – i.e., cases and questions “arising under” federal law. Inheritors of the Antifederalist viewpoint, such as Virginia judge Spencer Roane, contended that appellate review of state-court decisions by the Supreme Court violated the very principles of dual sovereignty that underpinned the entire constitutional structure. Instead, Roane claimed, federal supremacy required only that the state judges regard themselves as bound by federal law. Roane thus argued for a minimal, textually defined mechanism of federal control over state courts, while Marshall and Story insisted that some cases and legal questions were so inherently “federal” that they must be handled within the federal system itself. Thus Story’s statement in Martin v. Hunter’s Lessee (1816) that “[i]t is the case, then, and not the court, that gives the jurisdiction.” Simply put, the issue of the lower federal courts brought into conflict two older visions of how the formal separation of subject matter between the levels of government would actually work in practice. And, as the debates among Marshall, Story, Roane, and others in the 1810s and 1820s demonstrate, the particular political issues of the antebellum period – most notably, the ongoing controversy over the constitutionality of the Bank of the United States – galvanized the old debates about multilayered authority into new and complex forms.
I greatly appreciate Professor Hamilton’s comments and, in particular, his request for more of the nitty-gritty, real-world debates – the “contests over power and law and wealth,” as he puts it, that lie behind the intellectual battles of the period. And I look forward to elaborating on the early republican and antebellum incarnations of those messy debates in future work.