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Book Review
| Edward A. Purcell, Jr., Originalism, Federalism, and the American Constitutional Enterprise: A Historical Inquiry, New Haven: Yale University Press, 2007. Pp. 320. $45.00 (ISBN 978-0-300-122203-9).
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| Federalism, declared Justice O'Connor, is the "oldest question of constitutional law." To Edward Purcell, Jr., the Joseph Solomon Distinguished Professor at New York Law School, federalism was designed to be "incapable of either reaching permanent equilibrium or serving as a determinative constitutional norm" (193). This is due to four characteristics inherent in the founder's design. |
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First, they created a "doubly blurred" structure (17) by establishing "ambiguous ... lines of authority" between the state and federal governments (191) and by ambivalence concerning allocation of "the responsibility for protecting the nation's fundamental values" (191). Because both governments are agents of the sovereign people, the Constitution gives "the two levels of government overlapping authority to govern the same territories, the same people, and many of the same activities" (191). |
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Second, the founders created a "fractionated" structure (10) that was inherently dynamic and resistant to stable understandings of federalism. By creating three branches of the national government, "one of which was internally divided and all three of which evolved into complex bureaucracies" (10), they spawned a system in which the different powers and capabilities of the federal branches produce different and sometimes inconsistent effects on state affairs, with the result that "'national' policy" is often "diffuse ... or even nonexistent" (10). By recognizing differences between existing states and permitting the addition of future states, they opted for a "doubly divided" state structure (192). States were "divided from one another" (192) by their competing interests and were also "divided within themselves" (192) because of the divergent interests of regions or cities within any given state. "Thus, to speak of conflicts over state and national powers in general [forces] constitutional analysis into a procrustean divide that ignore[s] the kaleidoscopic nature of the nation's shifting and intricately layered interstate politics" (192). There was never anything monolithic about the states, and the federalism divide between states and the nation was never a simply binary division. |
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Third, the federal structure's "lines of authority were drawn inadequately and incompletely" (ibid.), with the result that factions that transcend the ostensible binary divide could and did become powerful players in national and state governance. Because the founders thought that parchment barriers were "insufficient to block factional aggrandizements," they relied on "purposive human actions [to] check other purposive actions" (11). As "Madison concluded, 'Ambition must be made to counteract ambition'" (57). Thus, the federal structure relied on "instrumental ... human purposes" as the driving force of governmental action (192). "As the structure's components responded to changing human purposes ... their actions provoked the other levels and branches to respond, ... not merely by 'checking' the actions of other levels and branches but also [by] ignoring, deflecting, accepting, abetting, and compounding those actions" (192). This instrumental quality, present from the beginning, meant that federalism would be "inherently dynamic and adaptive" (192). |
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Finally, the structure was contingent because "the Constitution mandated some changes, authorized others, and invited yet more" (12). As change exogenous to the structure occurred, the structure itself changed. In short, "the Constitution's provisions [made] the federal structure inherently malleable and adaptive" (12). |
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Purcell backs these contentions up with myriad interesting observations about our national history, all for the purpose of denying that there is any stable, original, allocation of power between the states and the national government. The original intention, if you will, was to create "an intrinsically dynamic and underdetermined system of government" (193). "Our Federalism," as Justice Black put it, has always been unstable, contested, blurred, fractured, and kaleidoscopic. Buddhist monks create elaborate and intricate sand mandalas, only to destroy them and recreate them anew. "Our Federalism" may not be quite so disjunctive, but it is a constantly shifting sandscape. We didn't stray from an original design; we have implemented the original design by constant change and adaptation. |
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What are we to make of this? Purcell does not conclude, as many will, that his study reinforces the view that the judiciary should refrain from policing the ever-moving frontier of federalism. Rather, he concludes that courts should decide federalism questions in a practical way, eschewing "rules or principles with bright-line limits" (204), by "carefully analyzing and explaining [the] likely practical consequences" of any given federalism judgment (205), and by recognizing that federalism involves "not just ... drawing lines between governmental units but also ... drawing lines between governmental power and the American people" (205). "The Court must demonstrate quite clearly why its federalism decisions are both practically necessary and generally benevolent" (206). There are no guarantees, says Purcell, a conclusion he admits is "both unsatisfying and unnerving" (206). We are left with the arduous enterprise of constitutional self-government. |
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| Calvin Massey
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| University of California, Hastings |
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