When the 13 colonies in America declared their independence from England in 1776, they did so as 13 separate sovereign states, loosely united for the purpose of rebelling. Their first attempt at some form of centralization – the Articles of Confederation – was actually a treaty in which each state retained all its own sovereignty. The Articles of Confederation did create a weak form of legislature, called the “Congress assembled”, which operated on a “one state, one vote” basis, with extremely limited enumerated powers, no ability to deal directly with any citizens, and no real coercive powers over the states. Each state remained the actual government for its own citizens. This structure was inadequate to the task, a “government destitute even of the shadow of constitutional power to enforce the execution of its own laws.” (Federalist Papers #21) It was replaced by the Constitution, drafted in 1787 and ratified in 1788.
The Constitution established the American model for federalism. As former Supreme Court Justice Kennedy described it, “[t]he Framers split the atom of sovereignty.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). The Constitution established a strong new national government with extensive enumerated powers while preserving the existing sovereignty of the states to the extent powers were (i) not exclusively assigned to the national government or (ii) not prohibited to the states by the Constitution. The Constitution succeeded in establishing a nation – the United States of America – where the phrase had previously been just a description of a collection of sovereign states, “united” with a lower case “u”. The former colonists were now both citizens of a nation and still citizens of their respective states, and over time a national identity developed.
The new national government had three independent branches: the unitary executive, identified as the President; the bicameral legislature (the Senate as the upper chamber, the House of Representatives as the lower chamber), which continued to use the name “Congress”; and the judiciary, consisting of the Supreme Court and lower national (federal) courts as Congress established them. Those three branches were made subject to an intricate system of checks and balances (as described in my lecture at the 2020 Putney Debates), to prevent overreach by any branch and by the national government as a whole. Each of the 13 (now 50) states also had an executive, a legislature and a state judiciary, and its own state constitution and state laws. The national government and the respective state governments exercised authority simultaneously over their overlapping citizens and overlapping territories.
It is important to emphasize that the new government created by the Constitution was at once a national government and a federal government. The states as states were assigned roles in the formation and operation of the new national government, including (i) ratification of the Constitution on a state-by-state basis, only binding upon each state upon its own consent; (ii) amendment of the Constitution required the approval of three-fourths of the states as states; (iii) each state, regardless of size and economic power, was equally represented in the upper chamber of the national legislature (the Senate); and (iv) the national executive was elected through a state-by-state process, which came to be known as the Electoral College. Thus, during the ratification process, the Constitution was defended as “strictly republican” in form, with some aspects that were “federal’” in form and other aspects that were “national” in form. “The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.” (Federalist Papers #39)
One unique aspect of the American form of federalism – at least unique when first created – was that the lines of power and authority between the two layers of sovereignty were left deliberately blurred. As Professor Ellis described it, the Constitutional framework intentionally left “the all-important sovereignty question inherently ambiguous.” (The Quartet (2015) at page 148) Instead of clear demarcations, the Constitution established an independent national (federal) judiciary with robust judicial powers of review over the acts of the legislative and executive branches of both the national and the state governments. The Constitution, laws and treaties enacted at the national level were declared the supreme law of the land, overriding inconsistent state law, and the Supreme Court became the final arbiter. Thus the protection of the national government from encroachment by the states, the protection of the states from overreaching by the national government, and the protection of the individual citizens from overreach by any layer of government, ultimately rested on the shoulders of the national Supreme Court. As Professor LaCroix described it, “the [federal] judiciary was the crucial fulcrum on which the federal-state balance pivoted.” (The Ideological Origins of American Federalism (2010) at page 169)
In my 2021 Putney Debates lecture I suggested five lessons to be learned from the American system of federalism. I will only mention three in this brief overview. First, conflicts between the layers of sovereignty are inevitable, so a resolution mechanism – a final arbiter – that is seen as legitimate by all the competing sovereigns and by the people is essential. For a new federalist system that need not be a judicial function, if robust independent judicial review is not an already accepted part of the existing governance structure, but then something must take its place.
Second, while the “inherently ambiguous” framework of the Constitution was a necessary part of the political compromises required to enact and ratify the Constitution (described more fully in my 2021 Putney Debates lecture), and it has largely worked for the United States for over 230 years – leaving aside, of course, the Civil War – any enactment of a new federal system could benefit from clearer lines of demarcation of powers and authority among the multiple layers of sovereignty.
Third, to be successful there must be a “spirit of federalism”, by which I mean political forbearance and self-restraint, political cooperation and accommodation across the competing layers of sovereignty. Without that, any system of federalism can easily be bogged down in disputes between the competing sovereigns, rather than acting in harmony for the good of the shared citizens.
(This overview is derived from a lecture given in November 2021 as part of The Putney Debates 2021: The Unity of a Nation, sponsored by the Oxford Global Society. A full length article is being prepared for future publication.)