The University of Chicago Law School Faculty Blog

LaCroix on the Use and Misuse of Legal History in McDonald

This post is cross-posted on SCOTUSblog.

The Thick Edge of the Wedge

by Alison LaCroix

Ever since the Court issued its decision in D.C. v. Heller in 2008, many legal historians have found themselves in the odd position of feeling compelled to defend their methodology against triumphalist congratulations from those outside the field.  In the wake of a decision that found both Justice Scalia and Justice Stevens invoking the Glorious Revolution, early colonial regulations, and the ratification debates, surely legal historians of all persuasions could agree that the insistence of both the plurality and the dissenters on speaking the legal-historical argot was a victory for the methodology.  Even if one disagreed with the justices’ conclusions, perhaps legal historians ought to be grateful that the battle was joined on the field of history.  In short, shouldn’t we see Heller as the moment when the Court finally joined us in the archives?

But, as the Court’s decision in McDonald v. City of Chicago demonstrates, the supposed victory of legal history was pyrrhic at best.  For those of us who insist to our students that a historical approach to constitutional law (as, for example, Philip Bobbitt lists among his six modalities of constitutional argument) need not be an originalist approach, and that larding a brief with a few citations to The Federalist does not amount to historical analysis, the McDonald decision suggests that the originalism-history equivalence remains distressingly fixed.  Despite Justice Stevens’s cautions about “[t]he malleability and elusiveness of history,” a strong current of history-as-objective-social-science runs through the decision.  The result is a collation of data points presented as noncontextualized truths, as though even to allow for the possibility of interpretation would condemn the entire enterprise to the fuzzy realms of postmodern indeterminacy.

Two examples of this misuse of history in McDonald are particularly notable: (1) the discussion of the self-defense rationale; and (2) the second-order question of the proper temporal baseline for determining which moment is the “original” one.

First, the self-defense argument.  In Heller, the Court insisted that the self-defense right was “the central component” of the right to keep and bear arms, despite the fact that it “had little to do with the right’s codification.”  In McDonald, the Court continues to place the entire weight of its argument on the self-defense right, which the plurality denominates a fundamental right meriting incorporation under the Due Process Clause of the Fourteenth Amendment.

But the Court’s equation between self-defense in the modern era — for example, the desire of the petitioners to keep handguns in their homes in order to protect themselves against criminal activity – and Anglo-American attitudes toward arms-bearing in the seventeenth and eighteenth centuries glosses over a key difference between the reasons for arms-bearing in those very different eras.  The Court’s rationale for the right is protection of the individual, the family, and the home against intruders and violent criminals.

The examples the Court cites, however – the 1689 English Bill of Rights’ protection of the right to bear arms; colonial Americans’ invocation of the rights of Englishmen to keep arms – have to do not with random acts of violence by individuals, but with resisting illegitimate exercises of governmental power.  The Court’s citation of Joseph Story’s statement that the right to bear arms is “the palladium of the liberties of a republic” tells the whole story, for Story goes on to say that arms-bearing “offers a strong moral check against the usurpation and arbitrary power of rulers.”  The same republican justification holds for the Kansas Free Soilers the Court cites.

In other words, the evil that seventeenth-, eighteenth-, and nineteenth-century commentators believed the right to bear arms would avoid was not home invasions by individual criminals, but the overthrow of the republic.  In virtually all the Court’s historical examples, a governmental regime is behind both the coerced disarmament and the violence.  Petitioners, meanwhile, are sympathetic individuals afflicted by crime but are not making the same sort of two-pronged republican liberty claim in which the government is both attempting to strip them of their arms-bearing rights and threatening them with violence.  For historians, such differences in motivation clearly demonstrate that one is looking at two fundamentally different times and worldviews, and that therefore an easy translation is impossible.

The second point concerns the Court’s shifting interpretive baseline.  Just when is the relevant “original” moment for the justices?  At least three possible moments suggest themselves as possibilities: (1) the Constitutional Convention; (2) the congressional debates over the Civil Rights Act of 1866 and the Fourteenth Amendment in 1868; or (3) the Court’s own twentieth-century cases dealing with incorporation of the Bill of Rights against the states.

Despite the Court’s insistence that the original meaning of the Reconstruction-era debates should determine the content of the Fourteenth Amendment’s protections, the Court is surprisingly quick to dispose of the three cases in which the Court declined to protect arms-bearing against state regulation.  With a brief statement that these three cases (Cruikshank, Presser, and Miller) “all preceded the era in which the Court began the process of ‘selective incorporation,’” Justice Alito disposes of the cases.

But this neat conclusion conceals an important circularity.  The opinion offers no account of how this nonoriginalist interpretation with respect to incorporation (tossing out this trio of major cases) can be reconciled with the overall commitment to originalism (valorizing the congressional debates).  Moreover, Cruikshank and Presser were decided in 1876 and 1886, respectively, putting them roughly in moment (2): the Reconstruction period.  Yet the Court rejects the possibility that the cases might offer any insight on the question before it, even as it seizes on congressional debates from no more than a decade before as objective evidence of late-nineteenth-century original meaning.

The suggestion is that we in 2010 now have access to what they in 1868 meant, even though a different “they” in the 1870s and 1880s had an entirely different idea about what people in 1866 meant.  The plurality opinion thus appears willing to engage in nonoriginalist interpretation in some cases (please disregard those bad old cases that came before we the Court figured out incorporation) while insisting on originalism in other cases (please consider the congressional debates of the 1860s as part of our own moment’s interpretive canon).  If this is the triumph of legal history that we have been waiting for, then we historians might prefer to wait some more.  We are, after all, accustomed to the passage of time.

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

Watch This Space: Hamilton to Review LaCroix Federalism Book

Professor Alison LaCroix's new book, The Ideological Origins of American Federalism, delves into an underexplored area of history, shedding light on the nature of a system so important to the development of America. Given the ongoing debates about the framers’ original intent, understanding the true origins of federalism is especially significant. The book has been making a great impression in the legal history world, being called "splendid," "a great achievement,""important," and "groundbreaking."

Dan Hamilton, Professor of Law at the University of Illinois College of Law, will review Professor LaCroix's book in this space shortly. We look forward to a robust discussion of the book and of the history of federalism, and expect a lively set of comments.

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.

American Legal History Workshop

This spring, another workshop will join the bumper crop already on offer at the Law School: the American Legal History Workshop.The workshop builds upon the Law School’s long tradition of exploring the intersections between law and history in America from the colonial period to the present, in the realms of both public and private law. This year’s speakers have produced pathbreaking work on a wide variety of chronological and thematic topics, from the constitutional law of Britain's North American empire, to early American property and tort law, to the twentieth-century civil rights revolution. They are Daniel Hulsebosch, NYU Law School (April 2); Mary Dudziak, USC Gould School of Law (April 16); John Witt, Columbia Law School(April 23); and Claire Priest, Northwestern Law School (May 21).

Alison LaCroix: "The New Wheel in the Federal Machine"

Assistant Professor of Law Alison LaCroix recently posted to SSRN a paper entitled "The New Wheel in the Federal Machine: From Sovereignty to Jurisdiction in the Early Republic." The abstract is below, and the entire paper may be downloaded here.

The years between 1787 and 1802 witnessed a transformation in American federal theory: from the focus on legislative authority that had occupied constitutional thinkers since the colonial period to a new emphasis on jurisdiction and a corresponding institutional preoccupation with courts. This shift is evident in the decades-long debate concerning the nature and scope of the federal judicial power, which saw repeated efforts by jurists and statecrafters to establish the proper jurisdictional arrangement to mediate between the multiple levels of government set forth in the Constitution. The fruits of these struggles to cement the practical and ideological meanings of federalism were the judiciary acts of 1789 and 1801. The two acts have received remarkably disparate treatment from scholars, with the 1789 act heralded as the basis of the federal judicial system and the 1801 act largely regarded as an embarrassment notable only for its role in the partisan conflict surrounding the election of 1800.

Instead of lionizing the 1789 act and attempting to excuse or dismiss the 1801 act, however, I read the two together to offer new insights into these crucial decades. In the 1801 act, Federalists sought to revive the colonial idea of subject-matter jurisdiction by establishing broad federal jurisdiction, including granting arising under jurisdiction to the federal courts and easing the requirements for removal of cases from state to federal court. The election of 1800 and the ensuing repeal of the 1801 act, however, spelled the demise of this idea of jurisdiction and a return to the type of concurrence and overlap among levels of government that had characterized the system set up by the 1789 act. As a chapter in my forthcoming book on the history of the American federal idea, this essay challenges the assumption underlying some modern federalism scholarship that nationalization through the federal judiciary is a relatively new, post-1937 phenomenon. My argument demonstrates the anachronistic nature of such assumptions by highlighting the centrality of the judiciary to early republican debates concerning the scope and extent of national power.