Federalism, Separation of Powers, Government, Alison LaCroix
By highlighting multiplicity in the federalism context, Alison LaCroix’s new book does constitutional scholarship a great service. Her tracing of the federal idea in the 1760s and 1770s, as well as her tracing of jurisdictional ideas in the early Republic, is thorough and insightful. But it is unclear why her focus suddenly narrows from the federal idea—the idea that multiplicity in levels of government was a virtue rather than a vice—to federal jurisdiction. Certainly, as this Review has endeavored to show, her claim that federalism discourse after 1787 reduced entirely (or even primarily) to jurisdictional debates cannot stand.
And this narrowing is unfortunate precisely because LaCroix’s discussion of multiplicity is so powerful and engaging. In this Review, I have attempted to bring back in the dimension of multiplicity that dropped out of LaCroix’s discussion: separation-of-powers multiplicity. Just as multiple competing levels of government were seen as a virtue, so too were multiple competing institutions within each level of government. Indeed, it was the interlocking of these two multiplicities that Madison referred to as “a double security . . . to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”
This ever-present multiplicity means that our constitutional order is always a work in progress—not because the meaning of the Constitution changes, but rather because one of the meanings of the Constitution is change. Multiplicity—and therefore overlap, tension, negotiation, and uncertainty—are built into our constitutional order. And this “arrangement [is] not a defect to be lamented but a virtue to be celebrated,” because it promotes representativeness and deliberation and prevents tyranny.
And it is a virtue to be celebrated loudly—because, as the example of executive branch contempt of Congress makes clear, judicial supremacy has become the conventional wisdom in constitutional discourse. But to focus on judicial supremacy in the separation-of-powers context is to sacrifice many of the virtues that LaCroix has identified so well in the federalism context.
Chafetz, Josh, "Multiplicity in Federalism and the Separation of Powers" (2011). Cornell Law Faculty Publications. Paper 180.
Published in Yale Law Journal, vol. 120, no. 5 (March 2011).