The University of Chicago Law School Faculty Blog

Federalism in the Second Generation: A Reply to Professor Hamilton

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.

Hiding in Plain Sight: A Review of The Ideological Origins of American Federalism by Alison L. LaCroix

Professor LaCroix's new book is a major addition to the dominant interpretations of political authority in the era of the Revolution and the Constitution.  We are familiar now with the foundational work on political ideology by Bernard Bailyn and Gordon Wood, and also with the new institutional and Atlantic histories of Jack Greene, Christine Desan, Dan Hulsebosch and Mary Sarah Bilder.  To oversimplify, the focus of this ideological history is revealing the conceptual framework of those who successfully pressed for revolution.  The focus of the institutional histories is to situate the creation of the new American nation within a broader context of empire and imperial practice.  Professor LaCroix in her history of the origins of American federalism, draws on each but also effectively suggests the need for a new category of analysis. 

Of the two schools of thought Professor LaCroix is clearly more at home in the first.  The book, as it sets out to do, successfully "brings ideology back into the discussion of the meaning and significance of federalism in the founding and ratification periods." (5)  Yet she parts ways with this earlier ideological work in two important respects.  First, her analysis takes us beyond the Revolution and the ratification of the Constitution, telling a story that does not culminate in Philadelphia but instead reaches into the early republic.  Second, she does not locate the origins of federalism within republican ideology, the chief driving force in so much ideological work of the founding era.  Instead, Professor LaCroix is interested in the history of what she calls "the federal idea" or "the broader context of the development of federal thought" from the 1760s to the beginning of the nineteenth-century.

This federal idea is much more sophisticated and powerful, and also more elusive, than the common depiction of federalism.  The federal idea is more than the battle between state and national power that confronted the framers of the Constitution, and the textual accommodations they reached.  It is more than the division of authority between state and federal governments in the service of limited government and popular sovereignty. The rise of the federal idea is instead a richer story of "the emergence of a normative vision of multilayered government."  This vision drew upon earlier ideas of divided authority in the work of Jean Bodin and Thomas Hobbes, and also the practice of divided government in Scotland and Ireland inside the British empire.  It was, however, transformed into a dominant strand of American political thought in the decades from the Stamp Act to the Judiciary Acts of 1789 and 1801. 

Over the decades, in multiple political and legal disputes over British imperial policy, this federal idea was debated and refined and led ultimately to "a newly defined federal ideology" in which sovereignty was not linked to territory, be it colony, state or nation, but was instead tied to "particular substantive objects."  Jurisdiction, or power, was "bounded by subject matter, not by political space."  In the hands of political and legal elites, this emerging ideology was "defined by a belief not only that lines could be drawn between sources of authority, but also that such line drawing was desirable as a normative matter."  In disputes over the Stamp Act, the Coercive Act, and into the creation of the Continental Congress and the Articles of Confederation, an ideology took shape that held as its premise that authority could and must be divided, or layered, among and between "parallel and nonoverlapping repositories."  How power ought to be divided between these layers of course remained central and contested, but Professor LaCroix's accomplishment is to show us a concept of sovereignty, based on "subject -matter-specific principles" that "ultimately provided the foundation for the American federal experiment."  This concept of government was, as she shows, at the heart of the debate at the constitutional convention, but did not begin or end there.  The framing of the Constitution is a vital point in the story of American federalism of course, but it is at the same time part of a much longer and richer intellectual trajectory. 

In its treatment of the emerging idea of federalism in the founding era, it is not too much to say that Professor LaCroix's book has done a great deal to change the terms of the debate.  We must now take account of the "federal idea" because she has so effectively demonstrated that this idea was at the center of American political and legal thought in a way we have not seen fully before.  In this book we encounter the usual suspects, Jefferson, Madison, and Marshall among others, but we have a new frame in place in considering the content of their ideas.  It is an exciting discovery, and once we are shown it, we cannot stop seeing it texts we thought had been largely mined to exhaustion, including the Federalist, Jefferson's inaugural address, not to mention the Constitution itself.  Just as Bailyn and Wood showed us a republican ideology that explained so much, and ultimately perhaps too much, here Professor LaCroix shows us an idea of federalism central to the framers that we have not considered in full, either because we were not looking for it, or looking at a single point in time, the summer of 1787 in Philadelphia, and so missed the progression, and even the content, of this foundational idea. 

Still, like all groundbreaking work, this book raises methodological questions, and I would like to raise two.  First, if Bailyn and Wood do ideological work on a grand canvas, Professor LaCroix's work is more an exquisite pointillism.   The book moves primarily by careful attention to emblematic texts, which leads to an in-depth and subtle readings of the sources.  This approach necessarily cannot take account of a broad swath of material.  Professor LaCroix's claim is to be sure fully supported in its account of ideas of federalism among the leading political and legal thinkers in the founding era.  We now need more work on the breadth of this ideology.  Part of the explanatory power of an ideological examination of the Revolution that focused on republicanism is the way it bridged political, regional and class divides in the service of fighting a long and bloody war.  Thus republicanism had high and low and middling manifestations.  It may be that federal ideology did as well. but we do not know that yet.  This is not a call for Professor LaCroix to write a different book, only a question about the social and political reach of the ideology she explicates so well. 

Second, and in a related point, Professor LaCroix's treatment of the federal idea is somewhat disconnected from specific political conflict, particularly in the framing of the Constitution.  The book is so careful not to fall into the trap of reducing the convention to a one-dimensional battle between Federalists and Ant-Federalists that it largely does away with categorizing the debate over federalism altogether.  We need to know more about who was doing intellectual battle and why.  One does not need to be a Beardian to view the constitutional convention as a high-stakes battleground, and the story as presented by Professor LaCroix is a little too clean, or not yet enmeshed enough in the furious contests over power and law and wealth that made the passage and ratification of the Constitution such a near thing . We are thankfully past the point where we have to choose between ideology and interests as driving historical change, and Professor LaCroix is sensitive to context and the force of competing commitments.  Yet we do need to know more about how the ideology she analyzes was grounded and contested, if not between Federalists and Ant-Federalists than between what other factions or nascent political parties. 

This book is driven by a new insight into the founding era, and its main accomplishment may be to re-orient us to the content of fundamental debates and documents, to re-frame our understanding of these debates closer to the way it was understood by the historical actors themselves.  We can count on more work that will teach us more and more about the federal idea, and we can thank Professor LaCroix for helping us see how little we knew and how much we still need to learn about something we thought we knew so well. 

Daniel W. Hamilton

Professor of Law and History, University of Illinois College of Law

Ambiguity in Legal Interpretation: Wrapping up

Although there is certainly more to discuss, it is time to close the blog debate over Ward Farnsworth's and my recent empirical work on the role of policy preferences in statutory interpretation.  I want to thank Judges Frank Easterbrook, Richard Posner, and Stephen Williams and Professors Einer Elhauge, William Eskridge and Ward Farnsworth for participating.  Finally, we owe a special debt to Jonathan Masur for organizing this event.  It was a very fruitful discussion.

Two Answers for Judge Posner

I said that I thought the Justices in the gun use case could have passed polygraph tests in which they said their semantic arguments were a substantial basis for their decisions.  In reply, Judge Posner has asked me two questions.  Here are my answers.

1.  What is my basis for thinking this?  Conversations with judges.  For anyone who does empirical studies of judicial decisions, and finds evidence of what seems like ideology at work in them, it is common enough to be told by a judge something like this: "that's interesting, but it doesn't square with my experience -- when I decide cases, I really feel that I'm making decisions based on legal materials, not policy preferences."  I have been told that sort of thing a number of times in conversations about these same issues, and I don't think the judges who have said it are being disingenuous.  (Sometimes objections like these are made public, as by Harry Edwards of the D.C. Circuit.  I don't agree with him, but I don't think he is being disingenuous, either.) 

The implication of the question, and of Judge Posner's earlier remarks, is that he doubts the polygraph test would be passed.  I would be interested in hearing speculation about this from the other judicial participants in this panel (but I sense a danger of circularity here!). I think polygraph tests of this kind are an exciting and amusing frontier in empirical legal scholarship.  If Judge Posner can persuade his colleagues to take them, I will start hunting up grant money. 

2.  Suppose they did pass the test; what would that show?  It would show that (a) they thought those semantic arguments were important, and didn't intend them as a smoke screen; and that (b) they thought that by relying on semantic arguments, they were deciding the case on grounds independent of their policy preferences.  Point (a) would fortify our claim that it's worthwhile to study how semantic arguments work, as we have been doing; for they are serving some function (but what?) in judicial decisionmaking.  As for point (b), despite the polygraph results I would not conclude that the semantic grounds really were the basis for their decisions in any deep sense.  On the contrary, I would point to our studies and suggest that the semantic arguments probably felt attractive because they squared with the judges' policy preferences.  So perhaps the semantic arguments are best viewed an unintentional or unconscious smoke screen (or maybe as a way to reduce cognitive dissonance, to use Judge Posner's phrase).

And so I would say:  beware semantic arguments; they sound unconnected from policy preferences, but easily get entwined with them and express them even if you don't realize it (arguments about language can feel very convincing, like they have nothing to do with preferences, but that feeling is unreliable).  If you really do want to argue about semantics and not policy, we have found a method that might make this somewhat more likely to work, though the method may or may not be attractive in any given case for reasons we talk about in our papers (Judge Posner would probably never like this approach).  If it turns out that you actually want to argue about policy and not semantics, then it would be better to stop pretending that semantics are the issue.  (Here I think Judge Posner would agree.)

Two Questions for Professor Farnsworth--Posner

In his latest post, Professor Farnsworth says: "I expect that the Justices who decided the gun use case could have passed a polygraph test in which they said the semantic arguments were a substantial basis for their decisions." Two questions: 1. What does he base this expectation on? 2. What would their passing a polygraph test show? That semantic arguments were a substantial basis for their decisions, or that (to avoid cognitive dissonance) they merely thought they were?

Ambiguity: Further reply to Posner

Like Judge Posner, I doubt that semantic arguments do the work that they appear to do in judicial opinions.  But unlike him, I don't quite think the issue is a lack of candor.  I expect that the Justices who decided the gun use case could have passed a polygraph test in which they said the semantic arguments were a substantial basis for their decisions.  But sometimes, and probably here, the legal arguments in a case are pliable enough to inadvertently express policy preferences rather than constrain them, even if the holders of the preferences do not understand this to be happening.  Our studies show this effect in a more controlled and stylized environment.  People told to put their preferences aside and just worry about semantics end up taking semantic positions that advance their preferences.

I suspect that Judge Posner makes it a question of candor because he himself has so little use for arguments about semantics (so it would show a lack of candor for him to make them).  But I think many other judges have not yet arrived at his conclusions, and that they take conventional legal arguments, including arguments about semantics, more seriously -- even if, as we mean to show, those arguments often end up carrying the water for policy preferences after all. 

We do suggest a way to make judgments about language that are less likely to be infected by policy preferences.  If nobody cares about doing that, and all the talk to the contrary in judicial opinions is a smoke screen, then this part of our study, like much other legal scholarship, would indeed be a waste of time.  But we think some judges still like the idea of doing it.  Judge Easterbrook says he is among them; perhaps Judge Posner isn't.  That's an interesting dispute (if it really is a dispute), but our project is not meant to try to settle it.

Further Reply to Farnsworth

I take the key passage in Professor Farnsworth's reply to be the following: "Maybe he thinks these passages are insignificant; it's just stuff that judges are required to say by custom, but that has nothing to do with their actual reasons for decision.  There may be something to that, but we think the materials that judges use (and feel obliged to use) to build their arguments can have some effect on what they actually do decide, so we aren't ready to treat these sorts of debates as though they don't exist" (emphasis added). I take it that by "some effect" he means a substantial effect, as otherwise the semantic arguments would not be interesting. My question is: what is the evidence that arguments about dictionary meanings and other semantic issues have a substantial effect on case outcomes?

The Supreme Court is a political court operating in a goldfish bowl; why should we expect candor in its opinions, any more than we expect candor in a Presidential address? There used to be candid Justices--Holmes and Jackson spring to mind--but who are the candid Justices today? And how often does one find semantic nitpicking in outstanding lower-court judges like Hand and Friendly?

Ambiguity: Response to Professor Eskridge

Other studies find that judges' votes are correlated with political views.  Indeed, even in the same case judges from across the aisle vote in different ways.  Those are observational studies, so suffer from issues with internal validity.  Our study has greater internal validity because it is randomized, but suffers from external validity.  We study students not judges.  We don't provide as much context or room for reasoning.  Yet our study finds similar results.  When there is evidence of political influence on one side and the other, it takes a great deal of faith to suppose that judges are fully insulated from their own political preferences.  The commentators provide no evidence on which to base that faith.

Our remaining claim is that the ordinary readers framing helps mitigate the effect of preferences.  Unfortunately, there is no observation data on judges corroborating our findings here.  Perhaps the data from Brudney and Ditslear would help.  In any case, our data suggest that the ordinary readers framing could have a potential debiasing effect.  This should be explored in future work.  Ideal would be a randomized study of judges.  

And again, judges are not the only individuals who bear responsibility for interpreting statutes.  Indeed, I would conjecture that only a small fraction of behavior is influenced by how judges read a statute.  Lawyers working for clients and the government must read statutes and tell clients or government employees how they must behave.  Prosecutors must read statutes and decide which individuals to prosecute.  All without judicial guidance.   In some cases these lawyers will use outside information, such as legislative history.  But in many cases they will base their decisions on the text of a statute and a quick judgment.  Our study may be more predictive of what influences lawyers in this context. 

One final point.  Perhaps it would be easier to absorb our findings if the experiment were viewed not as an attempt to see how judges vote but rather as a cognitive psychology experiment.  Social scientists have run numerous experiments on students revealing that they have trouble dealing with low probability events, or cannot understand fractions as well as odds, or are averse to ambiguity, or suffer endowment effects. Numerous legal scholars have cited these studies as suggesting that judges may suffer similar foibles. (And judges have surely wondered whether these behavioral findings apply to litigants before them.)   It can always be objected that the researcher did not study the target population to which scholars want to extrapolate their findings.  But the response is that the studies shed light on psychology and this psychology is not specific to one profession or another.  

From this perspective, perhaps it would have been better if, instead of showing students statutory text, we had simply showed them some other writing, such as a newspaper story, and asked them how they interpret that story.  I predict we would have found that preferences affect how people read the story.  But surely the fact that we actually used statutory text should not make such a cognitive psychology experiment less persuasive.  On the contrary, we show how the problem of separating preferences from judgments can affect a person's reading of the same sorts of texts that judges read.  We  don't claim that judges make their ultimate decisions about cases in the same way our respondents answered their survey questions; but we  think it's plausible that judges struggle with the same basic problem  our respondents did, and with the same lack of success, at the stage  of a case when they are trying to make the same kinds of judgments that our respondents were.

Ambiguity: Comment from Judge Williams

I understand that the judge confronted with decent briefs in a moderately close case doesn't ask the question of how "ordinary readers" would interpret the statute.  My point is simply that I don't see the study as offering evidence on the marginal gain (in reducing judicial non-neutrality) to be had from judges' asking themselves that question."

--Judge Williams

[Anup Malani is posting this comment on behalf of Judge Williams.  Judge William's is in Moscow and does not have reliable access to Typepad.]

Ambuguity: Eskridge Comment on Posner and Response to Malani's Reply to Eskridge

I have not been following the exchange very carefully but have read the authors' replies to Dick Posner and to me. I want to amplify my earlier point, that studies of law student responses to abstract problems about ambiguity have limited (perhaps no) value in understanding how judges, administrators, or even practicing lawyers process issues of plain meaning, ambiguity, and statutory interpretation.

Limitation #1. As Aristotle said (paraphrased for the current debate), statutory meaning is driven by context--including the facts of the case, the policy and legislative background, the surrounding text and the whole act, precedent and other prior interpretations, the constitutional terrain, etc. Simple hypotheticals have limited utility in telling us much about how judges et al. evaluate statutory texts--but perhaps the more telling point is that judges et al. have a lot more experience with legal materials than first-year law students do.

Limitation #2. Judges, administrators, and (usually) lawyers are publicly accountable for their interpretations of statutory text. That the law students answered the questions anonymously (I assume that was the case) or surely with no public accountability makes their task much different from that of the judge who realizes that her interpretation can be criticized by the losing party, lampooned by commentators, or reversed on appeal. Do these features of professional practice suggest that judges will be more disciplined than law students? I'd assume so. (This calls forth my biggest surprise about the study we are discussing: without accountability, I am surprised, and impressed, that the law students were not more influenced by their views of the merits. Good for them.)

Limitation #3. Judges, administrators, and attorneys also usually provide reasons for their decisions. I wonder whether the requirement of reasons might exercise some discipline on respondents, independent of the accountability point.