“Federalism” is not in the title of Jacob’s book, but to an American constitutional lawyer it is one of the two most obvious sites of the tension that he discusses. (Religious freedom is the other one.) As he notes, the instincts of liberal pluralism are evident in the decision to retain a set of thirteen or fifty different states, with legally protected powers to disagree with one another on issues of moral consequence. The instincts of liberal rationalism are evident in the decision to create a supreme national government that can break down local prejudices, and then to require that each state respect a set of national rights. Just as liberalism has both, our constitutional order has both.
To be sure, the fifty states are states, not purely voluntary associations, but as Jacob also recognizes, the arguments for pluralism by non-state associations often translate, both in theory and practice, to states, and the boundaries between state and non-state entities has not been historically firm either.
So the rationalism/pluralism divide is rehearsed throughout American constitutional history as a tension between two different strategies for limiting government abuse – through federalism and through individual rights. A committed liberal is tempted to say that federalism shouldn’t count when individual rights are at stake. But state defiance of national power also helps preserve rights, as the Kentucky and Virginia Resolutions told us a few centuries ago, and as the state-led marriage equality movement told us a few years ago.
I saw the tension again during law school, when the Institute for Justice was litigating Kelo v. New London, which questioned the scope of state power to condemn private property for corporate purposes. The justness of Ms. Kelo’s cause was an article of faith among nearly all libertarians I knew, but one of my most libertarian professors, Robert Ellickson, who taught me land use, nonetheless opposed the litigation. The more important libertarian principle, he thought, was the right of cities and states to make different land use choices. He thought we were too quick to discount pluralism by trying to impose national rights, even rights he agreed were meritorious. (A later essay with some of these thoughts is published here.)
I also encounter the tension every time I try to assess, in classically liberal terms, the basic scope of the rights and powers recognized by the constitution. We know the public-choice spillover arguments for why war and commerce are better handled at the national level, but they don’t tell us whether the federal government should be able to make contested choices about education, crime, or equality, and they don’t explain the proper scope of rights guaranteed against the states or whether those rights ought to be expanded. I take Jacob’s conclusion to be there is no a prior answer or definitive resolution to this question. That insight matches something I have noticed about the federal constitution:
The U.S. Constitution also does not reflect a categorical or even fixed view of the proper scope of federal power. Instead it sets several different structures through which the scope of federal power can be debated. On any topic included in Congress’s Article I powers, federal regulation is possible by convincing both houses of Congress and the President that it is needed, and can be defeated by convincing some of them that it is not.
But on a topic that’s outside of Congress’s powers, federal regulation is still possible. It’s just that it requires a different, more difficult, vote: two-thirds of each house of Congress and three-quarters of the states, the amounts needed to propose and ratify a constitutional amendment. The Constitution doesn’t firmly guarantee states’ rights; it instead makes some subjects easier to regulate than others, by putting different sets of rights up to different votes before different combinations of institutions. Thus the 1789 original Constitution already contained the seeds of the Fourteenth Amendment – because it contained Article V’s amendment process.
These lessons are reflected in the constitutional amendments that have slowly adjusted individual rights and national power on various subjects over the past few centuries. No doubt they will be reflected in future amendments that future generations, or ours, will also agree to adopt.
The tendency to assume otherwise – to treat the constitutional text as fixed and effectively unamendable – contributes to two contrasting mistakes among constitutional scholars. One is the temptation to distort the text because it is imperfect and yet interpretation is assumed to be the only available method of constitutional change. The other is to defend the constitutional structure too much and too reflexively – to assume that our government structure is wise, for example, when it might instead be deeply strange, but law nonetheless. (Sandy Levinson is one of the most notable exceptions to both mistakes, though of course he is not the only one.)
Jacob’s book helps me understand my intuition that it is better to recognize that any “distinction between what is truly national and what is truly local” is not a priori or theoretical. And the Constitution should not be thought to reflect such an a priori vision. Instead it reflects contingent and practical judgments that put some things more easily in national reach and some more easily in local reach, but invites all of those judgments to be remade through constitutional amendment. If Jacob is right, in a liberal constitutional order, that may be the best that can be done.
William Baude is Neubauer Family Assistant Professor of Law at the University of Chicago Law School, where he teaches federal courts and constitutional law. He received his J.D. from Yale Law School, and his B.S. in Mathematics from the University of Chicago, where he took American Political Thought from Jacob Levy. You can follow his writings on Twitter (@WilliamBaude) and SSRN.