REVIEW Federalism from the Bottom Up Gordon S. Woodt The Ideological Originso f American Federalism Alison L. LaCroix. Harvard, 2010. Pp 1, 312. In 1989 I gave a lecture at the Library of Congress commemorating the 200th anniversary of the founding of the Congress. Although my lecture was solely about the First Congress, during the question period a very angry woman asked: "Why don't you historians of the Founders give proper credit to the Iroquois in the creation of the Constitution?" I was surprised by the question, because I had never heard of the Iroquois's involvement in the making of the Constitution. I suppose I should have known about it, because, as I later discovered, the House of Representatives and the Senate in October 1988 had passed resolutions thanking the Iroquois for their contribution to the framing of the United States Constitution.! The angry woman was Laura Nader, the sister of Ralph Nader and a professor of anthropology at Berkeley. She was so infuriated that she wrote a letter to the Librarian of Congress, James Billington, enclosing an article by another anthropologist and suggesting that Billington "send this to Wood and educate him in the origins of the Constitution." So Billington sent it on to me. This is roughly how the anthropologist's argument went: Benjamin Franklin was at the Albany Congress in 1754, where he, suave diplomat that he was, congratulated the Iroquois on their ability to bring five tribes together to form the Confederacy of the Iroquois Nation. Three decades later, at the Constitutional Convention in 1787, t Alva o. Way University Professor and Professor of History Emeritus, Brown University. Portions of this Review are drawn from a speech given in Williamsburg, Virginia, on April 13, 2007, published in Gordon S. Wood, The Localization of Authority in the 17th-Century English Colonies, 8 Historically Speaking 2 (July/Aug 2007). 1 Iroquois Confederacy Indian Nations-Recognizing Contributions to the United States, HR Cong Res 331, 100th Cong, 2d Sess (Oct 21, 1988), in 102 Stat 4932; Contributions of the Iroquois Confederacy of Nations, S Cong Res 76, 100th Cong, 2d Sess (Sept 16, 1987), in 134 Cong Rec S 29528 (Oct 7, 1988). 705 706 The University of Chicago Law Review [78:705 Franklin presumably passed this idea of federalism on to his fellow delegates at Philadelphia, and in this manner the Iroquois influenced the creation of our present federal system.2 Alison LaCroix, Professor of Law at The University of Chicago Law School, does not buy this bizarre notion of causality. In her book, The Ideological Origins of American Federalism, she relegates this notion to an endnote; yet in her endnote she does grant some credibility to this idea that the Iroquois Confederacy contributed to America's conception of union before concluding that "on balance ... the case for causation has not been made" (p 229 n 40). This seems to me to be much too generous: this strange case for causation ought to have been dismissed out of hand. LaCroix thinks of herself as a historian, and no historian would conceive of causation or influence in this simple-minded manner. The Iroquois and other Indians certainly contributed a great deal to early American culture, but ideas about federalism were not among their contributions. Yet in her ambitious book, LaCroix has built a case for the causal origins of American federalism that is almost as fanciful as that of the Iroquois-minded anthropologists. Her case for the ideological origins of federalism is not simple-minded by any means; indeed, it is very complicated and highly imaginative, but it is based on often odd readings of an extensive body of primary and secondary sources. The result is a strange and disembodied account that is very different from all of the existing explanations of the origins of American federalism. LaCroix posits three approaches that previous scholars have used to account for the origins of American federalism. The first and most conventional, which she calls "the constitutional law approach," assumes that federalism simply emerged from the debates of the Philadelphia Convention and the state ratifying conventions in 1787 and 1788 (pp 2-3, 5). It assumes "that American federalism was novel, and that the creation of the Republic constituted a fundamental break with the past" (p 5) . The second and third approaches offer much broader and more expansive time frames. They tend to view the making and ratifying of the Constitution as an end point in developments that go back decades, if not centuries. LaCroix labels the second approach to the origins of federalism "the institutional approach" (p 4). Those scholars who 2 For an example of an argument along these lines, see Gregory Schaaf, From the Great Law of Peace to the Constitution of the United States: A Revision of America's DemocraticR oots, 14 Am Indian L Rev 323, 327 (1989). 3 See, for example, U.S. Term Limits, Inc v Thornton, 514 US 779, 838 (1995) (Kennedy concurring) ("Federalism was our Nation's own discovery. The Framers split the atom of sovereignty."). 2011]) Federalismf rom the Bottom Up 707 have explicitly discussed the question of federalism's origins have focused on the structures and institutions of the British Empire as the source of the concept of divided authority. Most prominent of these scholars, she quite rightly contends, is Jack P. Greene.' "In Greene's view, because colonists were subject to multiple ascending layers of political authority (colonial legislature, royal governor, Parliament, Privy Council), only a minor conceptual adjustment was needed following independence to establish the Constitution's two-level federal structure of state and national authority" (p 3). Greene's story, she concludes, is one of institutions operating between the peripheries and center of the British Empire. It is based on "the day- to-day political experience of British North Americans whose ideas about government followed from their interactions with what Greene terms the 'negotiated authorities' that operated as a practical matter within the British Empire" (p 3). More recent scholars, LaCroix suggests, have followed a similar institutional approach, an approach that focuses "on the outward manifestations of authority rather than on political beliefs or theories of government" (p 4). They have tended to treat institutions and experience as more important than arguments or ideology.' LaCroix believes that ideology, namely the republican synthesis popular among scholars in the 1970s and 1980s,' characterizes the third approach to explaining federalism (p 4). This approach has not been very satisfying, because it focused too much on the "broader moments of ideological transformation in late-eighteenth-century American politics" at the expense of the issue of federalism itself (p 5). LaCroix suggests that the republican ideological approach has lost whatever strength it once had and that, consequently, the constitutional and institutional approaches have come to dominate our understanding of the origins of federalism (pp 4-5). LaCroix wants to do something different from these three approaches in explaining the origins of federalism. She wants to bring ideology back into the story, not as the ideology of republicanism but as the ideology of federalism. "[T]he central claim of this book," she says, "is that the emergence of American federalism in the second half 4 See, for example, Jack P. Greene, Civil Society and the American Foundings,7 2 Ind L J 375, 381 (1997). 5 See, for example, Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalismi n the Atlantic World, 1664-1830 7 (North Carolina 2005) (focusing on "the way people experienced constitutions rather than on constitutional theory"). 6 See, for example, Gordon S. Wood, The Creation of the American Republic, 1776-1787 48 (North Carolina 1998); Bernard Bailyn, The Ideological Origins of the American Revolution 351-68 (Harvard 1992); Lance Banning, Republican Ideology and the Triumph of the Constitution,1 789 to 1793, 31 Wm & Mary Q 167,172 (1974). 708 The University of Chicago Law Review [78:705 of the eighteenth century should be understood as primarily an ideological development-indeed, as one of the most important ideological developments of the period" (p 6). She concedes that institutions were an important part of the story, but more important were "the ideas surrounding those institutions-the words and concepts that contemporary actors used as they explained to themselves what the institutions meant" (p 5). These ideas "played a crucial role in defining the contours first of colonial and then of early national government" (p 5). Unfortunately, she never makes clear why ideas were more important than institutions and the day-to-day political experience of the colonists. In fact, it is hard to imagine ideas having any effectiveness unless they are related to people's experience. But as a historian, LaCroix at least realizes that federalism is not some transcendent idea standing outside of time and place but a historically created conception that changed through time as circumstances changed. And as a historian, she is also well aware of the danger of grafting what we now know or believe onto the thinking of the past participants (p 6). "Federalism was a concept created in time," LaCroix says, and "[t]he time of creation was between 1764 and 1802" (p 11). Yet, like all intellectual history, the idea of federalism, she says, had a background. Its core conception of divided governmental authority "drew from several strands of political, legal, and constitutional thought," some of which went back to the sixteenth and seventeenth centuries (p 11). None of them necessarily led to federalism; but "taken together, they offered a conceptual framework through which observers in the latter half of the eighteenth century organized their thoughts about government, as well as a body of lived experience that shaped the vocabulary those observers had at hand" (p 11). Describing these strands of thought that formed the background of the creation of federalism between 1764 and 1802 takes up the first of LaCroix's six chapters. The colonists living in the British Empire necessarily experienced multiple lawmaking bodies, ranging from the activities of their towns and their provincial assemblies to the actions of Parliament and Crown, including the operation of the Privy Council as the final court of appeal in the Empire, three thousand miles away (p 12). Yet this experience with governmental multiplicity had to contend with the growing English preoccupation with the idea of sovereignty-that is, the doctrine that in every state there must be one final, supreme, indivisible lawmaking authority, or else the state would be divided against itself. Any attempt at multiple authorities, it was said, would 2011]1 Federalismf rom the Bottom Up 709 result in an imperium in imperio, or a state within a state, which was widely condemned as a solecism in politics (pp 14-15). This idea of sovereignty went back to the writings of Jean Bodin in the sixteenth century,' was reinforced by Thomas Hobbes in the seventeenth century,' and for an increasing number of Englishmen in the aftermath of the Glorious Revolution of 1689, was applied to the King-in-Parliament (pp 13-14). "The power and jurisdiction of parliament," wrote the eighteenth-century jurist William Blackstone in his celebrated Commentaries on the Laws of England, is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds.... It hath sovereign and uncontrolable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal .... In short, it can do every thing that is not naturally impossible.! Although many mainstream Englishmen by the mid-eighteenth century accepted this doctrine of sovereignty, some, such as William Pitt and Lord Camden, did not," and the idea remained contested among many Anglo-Americans (p 15). Drawing on the classical past, European thinkers, beginning with Hugo Grotius and Samuel von Pufendorf in the seventeenth century, offered various leagues, compacts, and confederations as examples of divided governmental authority (pp 18-20). There were, in other words, alternatives to the English unitary vision of sovereignty present in mid-eighteenth- century Anglo-American culture. In addition to these theorists, British North Americans, says LaCroix, had their own experience with colonial union in the British Empire to draw upon. She mentions the New England Confederation of 1643 and the failed Albany Plan of Union of 1754 (pp 20-23). Both schemes were designed to work within the existing imperial structure and assumed a multiplicity of authorities (p 24). The final examples of divided governmental authority that LaCroix invokes are those of Scotland and Ireland (pp 24-29). Until 7 See generally Jean Bodin, Six Books of the Commonwealth (Basil Blackwell 1955) (M.J. Tooley, trans) (originally published 1576). 8 See generally Thomas Hobbes, Leviathan (Penguin 1982) (C.B. Macpherson, ed) (originally published 1651). 9 William Blackstone, 1 Commentaries on the Laws of England 156 (Chicago 1979). 10 See Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan L Rev 843, 858 (1978) (describing Pitt and Camden as adherents of the view "that a fixed constitution and fundamental law limited even Parliament"). 710 The University of Chicago Law Review [78:705 the Act of Union of 1707, which created Great Britain, both the English and Scottish Parliaments had existed independently and had been connected only by a common monarch (p 25). In addition to Scotland, Ireland offered another historical example of an alternative approach to union. Although LaCroix presents a rather more negative view of Ireland's relationship to Great Britain than that suggested by recent scholarship," she is correct in stressing the ambiguous position of Ireland in the eighteenth-century empire. Although Parliament in 1720 claimed that it had jurisdiction over Ireland in all cases whatsoever," it had tended to be cautious in its interventions into Irish affairs. Like the North American colonial legislatures, the Irish Parliament, according to Jack P. Greene and other scholars, developed a considerable degree of independence during the first half of the eighteenth century." Because both North America and Ireland were occasionally touched by the British Parliament's ultimate authority, people in the empire became used to double legislatures. "Taken together," LaCroix concludes, "these antecedents formed the background against which American thinking about legislative power, sovereignty, authority, union, and jurisdiction fundamentally changed between the 1760s and the 1800s" (p 29). LaCroix seems to believe that she has fully described the colonists' "lived experience" with federalism in this brief opening chapter (p 11), but in fact she has barely scratched the surface. She never acknowledges that the American colonists from the very beginning of their settlements in the seventeenth century were thoroughly familiar with the dividing and apportioning of political power. Indeed, this early experience with divided authority was far more significant in preparing Americans for federalism than the writings of Grotius or Pufendorf, or even their dealings with the distant multiple layers of empire. In fact, Americans from the outset were conditioned to think of political authority as very different from the top-down hierarchical structures of England and Europe. The early colonists did not need the Indians or anyone else to tell them how to dole out and divide up political power and construct 11 See, for example, Jack P. Greene, The Constitutional Origins of the American Revolution 47-52, 93-94 (Cambridge 2011). 12 See Dependency of Ireland Act, 1719,6 Geo I, ch 5 (1720) ("Parliament assembled, had, hath, and of Right ought to have full Power and Authority to make Laws and Statutes of sufficient Force and Validity, to bind the Kingdom and People of Ireland."). 13 See, for example, Jack P. Greene, Peripheriesa nd Center: ConstitutionalD evelopment in the Extended Polities of the British Empire and the United States, 1607-1788 63 (Georgia 1986). 2011] Federalismf rom the Bottom Up 711 confederations. They learned at the beginning that political authority was divisible and created from the bottom up.1 The migrants who settled Jamestown and the Chesapeake, and later New England, came already primed with a long English heritage of local autonomy. As the populations in both the Chesapeake area and in New England quickly dispersed, this acute English sense of local authority was reinforced and intensified. No one had quite expected such rapid dispersion of settlement. The Virginia Company, for example, hoped to set up boroughs in the Chesapeake and, indeed, created four towns on paper-Jamestown, Charles City, Henrico, and Kiccowtan." The settlers' desire to grow tobacco, a very soil-exhausting crop, undid the plan of having boroughs with burgesses as citizens." Although only one of the four towns, Jamestown, actually arose, the colony's legislature was initially called the House of Burgesses, and the name stuck. Instead of congregating in towns, the settlers dispersed and created private plantations throughout the Chesapeake area. By the 1630s, the scattering of settlements had become so great in the Chesapeake area that some sort of local organization became necessary, and, in imitation of England's county structure, the colony was divided into eight counties, each with its own court." But, unlike England, where power flowed from the Crown downward to the localities, these county courts became the loci of power. Within less than a generation of settlement, these county courts became not only the basic unit of local government in Virginia but the source of representation in the central government, with each county sending two burgesses to the central government." Although the 14 See Bailyn, Ideological Origins at 160 (cited in note 6). For more detailed discussions of the local development of political structures in the colonies, see Michael Kammen, Deputyes & Libertyes: The Origins of Representative Government in Colonial America 13-51 (Knopf 1969) (giving a colony-by-colony account of legislative development in the American as well as Caribbean colonies, focusing in particular on the development of local governments with substantial independence); Paul Lucas, American Odyssey, 1607-1789 30-49 (Prentice-Hall 1984) (attributing the development of bottom-up political authority to the fact that the colonies lacked several important institutions, including "the Crown, the Anglican Church, and the aristocracy"). 15 Instructions to Governor George Yeardley, November 18, 1618, reprinted in Jon L. Wakelyn, ed, 1 America's Founding Charters:P rimary Documents of Colonial and Revolutionary Era Governance 49, 49-51 (Greenwood 2006). 16 Consider Warren M. Billings, The Growth of Political Institutions in Virginia, 1634 to 1676, 31 Wm & Mary Q 225, 226 (1974) (attributing the growth of local institutions in colonial Virginia to economic and social patterns that were unique to Virginia). 17 Id at 227. 18 See Two Burgesses for Each County (1669), reprinted in William Waller Henning, 2 The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature in the Year 1619 272, 272-73 (Pleasants 1810). 712 The University of Chicago Law Review [78:705 parish originally had been the organization for local government, the county soon supplanted it and became the sole authority relating to the central authority in Jamestown. The county courts became powerful, self-perpetuating bodies that combined within themselves various civil, criminal, ecclesiastical, admiralty, and administrative jurisdictions that in England were exercised by different institutions. They assumed the power to deal with orphans, probate wills, collect taxes, regulate morals, supervise the militia, maintain prices, relieve the poor, issue land titles, license taverns, control the parish vestries- in fact, the men sitting on the vestries tended to be the same men sitting on the county court-and enact bylaws for their counties." Central authority remained weak and dependent on power flowing upward from the counties.20 The same dispersion of people and localization of authority took place in New England. Within months of landing in 1630, the Puritans had created seven towns surrounding Boston.21 These New England towns became the sole unit of local government. Like the Chesapeake county courts, the town united within itself a host of powers that had been widely shared by different local institutions in England.' The parish, the borough, the village, the manor court, the county-all were collapsed into the New England town. During the first generation of settlement in the New World, the Crown, which in England was considered the source of all local authority, for all intents and purposes simply did not exist. This meant that the local units of government in both the Chesapeake and New England attained extraordinary degrees of autonomy and power without being beholden to the Crown at all.' Indeed, so strong and autonomous did the local authorities become that even the central governments in each of the early colonies in the Chesapeake and New England had difficulty dealing with them.' It soon became evident that these central authorities not only often existed at the behest or at the sufferance of the local units but were sometimes also the creatures of the local units. The colony of Connecticut, for example, was created in 1639 when three 19 See Billings, 31 Wm & Mary 0 at 225-32 (cited in note 16). 20 See id at 232. 21 See Mark A. Peterson, The Plymouth Church and the Evolution of Puritan Religious Culture, 66 New Eng Q 570, 579 (1993). 22 See Lucas, American Odyssey at 94-96 (cited in note 14) (noting that the typical town in Massachusetts Bay Colony had the authority to distribute land, monitor economic progress, elect officials, and maintain public spaces). 23 See id at 69 (noting that English officials were "appalled by the degree of independence shown by colonies like Massachusetts"). 24 See Billings, 31 Wm & Mary Q at 242 (cited in note 16). 2011] Federalismf rom the Bottom Up 713 independent towns-Hartford, Windsor, and Wethersfield -came together and agreed in a written Fundamental Orders to form a superintending central government.' (This is why Connecticut today calls itself the "Constitution State" on its automobile registration plates.') These Connecticut colonists had a clear sense that they were putting together a central government from the bottom up. A similar development took place in New Haven in 1643, when a half-dozen or so towns joined together to form a separate colony.' In the 1660s, these towns revolted and joined Connecticut.' All of this reinforced the view that authority was created by the pooling together of local power from below. In other words, these early settlers were experiencing federalism without any ideological justification whatsoever. Some towns in New England sometimes belonged to no colony at all. Springfield, for example, existed independently for a decade or so until 1649, when it was finally incorporated into the colony of Massachusetts Bay. Although ostensibly a colony, seventeenth- century Rhode Island was in reality four more or less independent towns: Providence, founded by Roger Williams; Portsmouth, founded by Anne Hutchinson, in flight from the Puritans in Boston; Newport, founded by William Coddington; and Warwick (or Shawomut, as it was called then) founded by a real radical, Samuel Gorton, who was as cantankerous a character as ever existed in American history. Williams was constantly trying to bring these cranky Puritans together, but they were at each other's throats through most of the seventeenth century. Williams finally got a patent from the Puritan Parliament in 1644," and unified the towns temporarily in 1647,' but that central authority remained very weak. The towns could not agree where the colony's government should meet, so they rotated from one town to another. In the 1650s, the confederation of towns, such as it 25 See Fundamental Orders of Connecticut, 1639, reprinted in Wakelyn, ed, 1 America's Founding Charters 125, 125 (cited in note 15). 26 See Jon 0. Newman, "The Old Federalism": Protection of Individual Rights by State Constitutionsi n an Era of Federal Court Passivity, 15 Conn L Rev 21, 21 (1982) (describing the motto as "a designation reflecting our justified pride in having begun the process of civil governance pursuant to a written statement of fundamental law"). 27 Lucas, American Odyssey at 42 (cited in note 14) (noting that the town of New Haven united with Fairfield, Guilford, Milford, and Stratford to form the colony of New Haven). 28 See id. 29 Patentf or Providence Plantation,M arch 14, 1643, reprinted in Wakelyn, ed, 1 America's Founding Charters1 46, 146-48 (cited in note 15). 30 See Acts and Orders Made at the General Court of Election, May 19-21, 1647, reprinted in Wakelyn, ed, 1 America's Founding Charters 148, 148-49 (cited in note 15). 31 See Kammen, Deputyes & Libertyes at 29 (cited in note 14) (noting that a strong sense of localism delayed the actual implementation of a central government by seven years). 714 The University of Chicago Law Review [78:705 was, fell apart.32 Rhode Island now had two general assemblies, two sets of officials.' In the end, the colony was rescued by a man named John Clarke, who, unlike Roger Williams, is virtually unknown today. Although he was a Puritan, Clarke nonetheless succeeded in securing a royal charter from Charles II's government in London in 1663, three years after the ousting of the Puritans and the restoration of the Stuarts.' To this day, no one knows quite how he did it, but he saved the colony of Rhode Island. Despite the royal charter, however, near town anarchy continued to exist throughout the seventeenth century. The towns disregarded many laws-from collecting taxes to recording land titles-and scarcely existed as a united colony.35 This intense localization of authority that took place in both New England and the Chesapeake was not matched by any corresponding clarification of the relationship between the central and local governments, whether towns or counties. Plymouth Colony is a good example. It was founded in 1620 by Pilgrims who had a patent from the Virginia Company.6 But they landed in New England-outside of the Virginia Company's claim. They realized this immediately, which is why the Pilgrims drew up the Mayflower Compact, granting them some legal authority to govern themselves." In 1621, they obtained a new patent from the New England Council, which soon went out of business and was superseded by the Massachusetts Bay Charter of 1629." So the Pilgrims found themselves in Plymouth with no legal authority whatsoever except from a patent from a company that no longer existed. William Bradford, the great diarist, controlled the patent, such as it was, and ruled rather autocratically. But there were protests from the towns, which by 1640 numbered ten. As the towns scattered westward, the central authority's control over them was steadily weakened. By the 1680s, the towns were in open revolt, refusing to pay taxes to the central government in Plymouth.' When 32 See id. 33 See George Washington Greene, A Short History of Rhode Island 34 (Reid 1877). 3 See Charter of Rhode Island and Providence Plantation, July 8, 1663, reprinted in Wakelyn, ed, 1 America's FoundingC harters 151, 151-52 (cited in note 15). 35 See Theodore Dwight Bozeman, Religious Liberty and the Problem of Order in Early Rhode Island, 45 New Eng Q 44,44 (1972). 36 See Lucas, American Odyssey at 36-37 (cited in note 14). 37 See id at 37. 38 See generally Charter of Massachusetts Bay, 1629, reprinted in Wakelyn, ed, 1 America's Founding Charters 82 (cited in note 15). 39 See Roland Greene Usher, The Pilgrims and Their History 204 (Macmillan 1918). 4 See George D. Langdon Jr, Pilgrim Colony: A History of New Plymouth, 1620-1691 233,244 (Yale 1966).