Monday, August 16, 2010

Chafetz on LaCroix on the history of federalism

Multiplicity in Federalism and the Separation of Powers has just been posted by Josh Chafetz, Cornell Law School. It is forthcoming in the Yale Law Journal (2011). Here's the abstract:
Alison LaCroix's new book, "The Ideological Origins of American Federalism," offers an insightful and compelling prehistory of federalism in the American Constitution. LaCroix demonstrates and traces the emergence of an ideology of federalism, an ideology centered around the concept of legitimate multiplicity in governmental authority, beginning with the colonial reaction to the Stamp Act in 1765.

However, as LaCroix's narrative progresses, her institutional focus inexplicably narrows. Beginning with the Constitutional Convention and continuing through the 1789 and 1801 Judiciary Acts, LaCroix argues that federalism took a turn toward judicial supremacy. In short, she argues that federalism discourse in the new republic was structured around courts and jurisdiction, rather than legislatures and sovereignty.

This Review highlights a number of factors that LaCroix's analysis overlooks - including structural constitutional features like the composition of the Senate and the federal military power, as well as historical controversies like the debate over the Bank of the United States and the Kentucky and Virginia Resolutions - to suggest that the focus on judicial power is more an artifact of LaCroix's choice of evidence than an accurate reflection of the state of federalism discourse. Instead, this Review argues that the Constitution uses separation-of-powers multiplicity in the service of federalism multiplicity.

This Review then expands on LaCroix's idea of multiplicity, bringing it to the separation-of-powers context. The final section of the Review begins to develop a theory of multiplicity in the separation-of-powers, focusing on the ways in which constitutional politics affects not only the resolution of substantive issues, but also the institutional site at which those issues are resolved.

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