Comparative Constitutional Federalism: Europe and America

By Mark Tushnet | Go to book overview

a proletarianization of northern society was probably the most important factor in the development of political antislavery--as opposed to abolitionism--in the free states. 45

Although northern public opinion did not begin to swing decisively in this direction until the midpoint of the nineteenth century, the implications of expansion for the future of American federalism became apparent with the Missouri Crisis of 1819-21, which was largely resolved through a compromise that would admit slave and free states to the union in equal numbers, so that the Senate would henceforth serve as the principal institutional defense for the South. This was a formula, not for nation-building, but for the mere preservation of an uneasy status quo. During this same period of hothouse politics, the Marshall Court issued some of its most famous nationalist opinions. From this point on, American ideas of federalism increasingly expressed the hoary logic of imperium in imperio, with all its reductionist tendencies. Even with the federal government maintaining its minimalist activities, the lines of conflict between the rival claims of national and state sovereignty were drawn with increasing clarity. So it was that James Madison could leave as his final political testament only a brief plea "that the Union of the States be cherished and perpetuated" and his assent to the posthumous publication of his notes of debates at the 1787 Convention, which he must have hoped would teach its readers that the deepest problems of nation-building were not beyond their powers of reason and politics alike. In this, of course, he would have been disappointed. 46


NOTES
1.
Alexis de Tocqueville, Democracy in America, Phillips Bradley, ed. ( 1945), vol. I, at 166.
2.
Gordon S. Wood, The Creation of the American Republic, 1776-1787 ( 1969), at 355.
3.
See, for example, the June 19 exchange between Luther Martin and James Wilson in The Records of the Federal Convention of 1787 ( Max Farrand ed., 2d rev. ed., 1987), vol. I, at 322.
4.
See H. Jefferson Powell, "The Modern Misunderstanding of Original Intent," University of Chicago Law Review 54( 1987), at 1513-44, reviewing Raoul Berger, Federalism: The Original Design ( 1987), affirming the priority of the states under a theory of original intention.
5.
This point is briefly discussed in Jack N. Rakove, The Beginnings of National Politics: An Interpretive History of the Continental Congress ( 1979), pp. 51-52, 65-66.
6.
Much of this literature is summarized and elaborated in Jack P. Green, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607-1788 ( 1986).
7.
Michael G. Kammen, Deputyes and Libertyes: The Origins of Representative Government in Colonial America ( 1969), at 3-68.
8.
Bernard Bailyn, The Ideological Origins of the American Revolution ( 1967), pp. 198-229.

-16-

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Comparative Constitutional Federalism: Europe and America
Table of contents

Table of contents

  • Recent Titles in Contributions In Legal Studies ii
  • Title Page iii
  • Contents v
  • Foreword: Toward a National Identity in the European Economic Community vii
  • Notes x
  • Preface xi
  • 1: The First Phases of American Federalism 1
  • Notes 16
  • 2: Economic Integration and Interregional Migration in the United States Federal System 21
  • Notes 50
  • 3: Preservation of Cultural Diversity in a Federal System: The Role of the Regions 67
  • 3: Preservation of Cultural Diversity in a Federal System 67
  • Notes 75
  • 4: Putting Up and Putting Down: Tolerance Reconsidered 77
  • Notes 105
  • 5: Protecting Human Rights in a Federal System 115
  • Notes 133
  • 6: Conclusion 139
  • Notes 150
  • Bibliographical Essay 153
  • References 159
  • Index 163
  • About the Editor and Contributors 167
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