by Malcolm M. Feeley and Edward Rubin. Ann Arbor, MI: University of Michigan Press, 2008. 238pp. Cloth. $35.00. ISBN: 9780472116393.
Reviewed by Christopher Brooks, Department of History, East Stroudsburg University. Email: cbrooks [at] po-box.esu.edu.
It is notable that, “federalism represents a compromise among groups who refuse to yield autonomy yet acknowledge the benefits of forming a nation” (book jacket). It is true that the eighteenth-century US was confronted with addressing how to apply such compromise when, “thirteen regionally distinct, ethnically diverse, and highly independent British colonies came together to found a nation” (book jacket). What has happened according to the Malcolm Feeley and Edward Rubin, authors of FEDERALISM: POLITICAL IDENTITY AND TRAGIC COMPROMISE, “the rise of a strong national identity and a ubiquitous bureaucracy” has lead to federalism in the US becoming “obsolete” (book jacket).
Beyond laying out federalism’s meaning, differentiating it from other structures, such as consociation, one of the main the objectives of FEDERALISM: POLITICAL IDENTITY AND TRAGIC COMPROMISE “is to . . . consider the implications of our argument for the structure of the American federal system” (p.x). That implication is made plain early on, as Feeley and Rubin maintain that “federalism in the United States is . . . managerial decentralization,” and that, because “outlier states” are not able to act in accordance with their own consciences, “federalism is no longer an operative principle in the United States” (p.ix). The US applies federalism for purposes of identity, but this application, according to Feeley and Rubin, is not true to the terms of actual definition.
As Feeley and Rubin define federalism, scholars might come to realize that this definition does not fall in line with what America utilizes as a system. Indeed, to avoid dealing with this issue, some who have or currently do teach about American federalism abroad sometimes tend to simplify a potentially consequential faux pas in terminology by simply stating that we in the US are referring to (US-)American federalism, acknowledging its difference from that of so many other nations. It appears that Feeley and Rubin would agree, suggesting further that America’s structure is not even federalism as understood elsewhere. For example, according to DAS POLITIKLEXIKON, by Schubert and Klein (2006), federalism “represents a political order in which governmental tasks between the entire state and individual states is divided. And, this is done so that both political levels are individually responsible for specific, constitutionally stipulated tasks” (C. Brooks translated this passage). This point is of tremendous import to the veracity of the Feeley and Rubin definition, as “federalism generally results in a high [*1062] level of decentralization, decentralization does not lead to federalism” (p.21).
From a historian’s perspective, there seems to be a piece missing. If thirteen colonies were autonomous from the start – as often presumed – where is the grant from a central regime? Or, is such granting merely a hyper/pseudo-reality? As Jack Rakove once queried, “Which came first, the Union or the states?” (Rakove 1996, at 163). Rakove’s question is still debated, thus making it difficult to state, as Feeley and Rubin do, that the federalism that the US claims to have is really not federalism. The term is used almost solely for purposes of political identity but is a false label, creating a hyper/pseudo-reality. Until a consensus has been achieved, it is difficult to say in what direction the nation should go with respect to terminology. Although Rubin and Feeley are correct with respect to where the nation is today, or at least where it is heading, is it an absolute certainty that the nation will continue to strengthen the central powers, negating any true federalist proclivities the Founders may have had?
Further, the omission of a more comprehensive discussion of dual sovereignty is problematic. To be sure, taking a close look at Madison’s conception in his FEDERALIST essays may have proven fruitful to their thesis. In FEDERALIST 39, Madison (at 307) notes that the “idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government.” He then goes on to articulate that “the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere” (Madison, at 308). And with this, American dual sovereignty is articulated.
In this, which would have strengthened Feely and Rubin’s thesis, Madison argues that the nature of the Constitutional amendment process is neither entirely federal nor national (Madison, at 307-308). Such a text deserved attention and, to borrow from Geertz, would have thickened the description of the terms they were attempting to clarify.
What the US has, in the words of an earlier article by Rubin, is “puppy federalism;” “real federalism is gone,” and scholars should stop believing the “rhetoric and mistaking puppy federalism for the real thing . . . America is a centralized administrative state” (Rubin 2001, at 49). Indeed, Americans should be pleased, because “our nation no longer needs this unfortunate expedient” and should concentrate its “attention on complex and important issues, such as [by focusing on] the optimal way for a national government to supervise the regional subordinates that we continue to describe as states” (Rubin 2001, at 49). In short, Rubin, consistent to this argument and with the concurrence – if not the total agreement – of Feeley, has laid out a treatise on this theory worthy of attention, as US historians, lawyers and political scientists alike should perform a serious re-evaluation of the words we apply to describe the US political system. The trouble with this thesis, however, lies in [*1063] the fact that many Supreme Court decisions rather clearly admonish the move toward central authority and away from a truer federalism. A case indicative of this notion is ALDEN v. MAINE (1999), in which the Court held that the states “are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty” (at 715). Perhaps herein lies the problem that Rubin and Feeley are driving at when attacking the sense of Justice Scalia’s opinion in PRINTZ v. U.S (1997). The authors accurately point out that “legislative commands to administrative officials” first make an appearance relatively recently (p. 141). The more critical issue, however, is that the tenth amendment’s provisions seem to conflict with a number of other constitutional stipulations – Congressional reach being one of them – and the Court has on occasion leaned toward the supremacy clause as a means of providing natural right protections states historically had refused to afford some citizens. That said, there is nothing preventing the Court from leaning in favor of states’ rights and the tenth amendment, as stare decisis is not absolute in the American system (e.g., U.S. v. LOPEZ 1995).
Ambiguity of terms of the Constitutional arrangement was quite possibly a means of compromise with the intent of allowing the US to develop into precisely the system which Rubin and Feeley have observed. By contrast, there is no clear consensus on this and no indication that believers in American Federalism (e.g. Justices Thomas and Scalia) are likely to capitulate. Hence, the debate continues and Feeley and Rubin have made a worthwhile contribution to it.
Madison, James. 1998. THE FEDERALIST 39. (John C. Hamilton (ed)). Washington, DC: Gateway Editions.
Rakove, Jack. 1996. ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION. New York: Alfred A. Knopf.
Rubin, Edward L. 2001. “Puppy Federalism and the Blessings of America.” 574 THE ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 37-51.
Schubert, Klaus and Klein, Martina. 2006. DAS POLITIKLEXIKON (4th ed). Bonn: Dietz.
ALDEN v. MAINE, 527 U. S. 706 (1999).
PRINTZ v. UNITED STATES, 521 U.S. 898 (1997).
UNITED STATES v. LOPEZ, 514 U.S. 549 (1995).
© Copyright 2008 by the author, Christopher Brooks.