The Yale Law Journal

May 2019

Empire States: The Coming of Dual Federalism

FederalismLegal HistoryConstitutional LawFederal Indian Law

abstract. This Article offers an alternate account of federalism’s late eighteenth-century origins. In place of scholarly and doctrinal accounts that portray federalism as a repudiation of models of unitary sovereignty, it emphasizes the federalist ideology of dual sovereignty as a form of centralization—a shift from a world of diffuse sovereignty to one where authority was increasingly imagined as concentrated in the hands of only two legitimate sovereigns.

In making this claim, the Article focuses on two sequential late eighteenth-century transformations. The first concerned sovereignty. Pre-Revolutionary ideas about sovereignty reflected early modern corporatist understandings of authority as well as imperial realities of uneven jurisdiction. But the Revolution elevated a new understanding of sovereignty in which power derived from the consent of a uniform people. This conception empowered state legislatures, which, throughout the 1780s, sought to use their status under new state constitutions as the sole repositories of popular authority to subordinate competing claims to authority made by corporations, local institutions, Native nations, and separatist movements.

The second shift came with the drafting and ratification of the U.S. Constitution, which bolstered federal authority partly in order to protect state authority against internal competitors—an aim reflected in the Guarantee and New State Clauses. Ultimately, the Constitution both limited and enhanced state authority; it entrenched a framework of dual sovereignty. After ratification, competitors to state sovereignty were increasingly constrained to appeal to some federal right or power. What had previously been contests among supposedly coequal sovereigns—what modern scholars would call horizontal federalism—became questions of vertical federalism, issues of whether federal authority would vindicate states or their opponents.

Although the Article concludes with some implications of this history for present-day federalism doctrine and theory, its primary contribution is descriptive. Judges and lawyers routinely and almost unthinkingly invoke localism and power diffusion as the historical values of federalism. Yet the history explored here challenges whether these near-universal assumptions about federalism’s aims actually reflect what federalism was designed to accomplish.

author. Associate Professor of Law, Stanford Law School. Thanks to Will Baude, Nikolas Bowie, Bill Ewald, Lawrence Friedman, Sally Gordon, Sarah Gronningsater, Amalia Kessler, Sophia Lee, Jessica Lowe, Serena Mayeri, Michael McConnell, Maggie McKinley, Bernie Meyler, Lance Sorenson, Norm Spaulding, the Harvard Public Law Workshop, the Stanford Faculty Workshop, the Penn Law Writer’s Bloc(k), and the UC Davis School of Law Faculty Enrichment Series for feedback. Special thanks to Alison Gocke and Michael Abrams for outstanding research assistance.