In May 1862, as the American Civil War was entering its second year, the English novelist Anthony Trollope, who had just returned from a year’s travel around the United States, likened the US Constitution to a pair of old boots. He meant it as a compliment.
“When a man has walked for six months over stony ways in the same boots, he will be believed when he says that his boots are good boots,” even if “a stitch or two has come undone” or “some required purpose has not effectually been carried out,” Trollope wrote in his two-volume study, North America. “The boots have carried the man over his stony roads for six months, and they must be good boots. And so I say that the constitution must be a good constitution.”
Trollope had voyaged to the US to research a book on “the present social and political state of the country”. In this project, he was following in the footsteps of his equally famous mother, Frances Trollope. Three decades earlier, she had chronicled her four years spent in the US in her bestseller, Domestic Manners of the Americans.
Although their travelogues were published 30 years apart, both Trollopes were struck by the ferocity of disagreements between Americans over their country’s political and legal structure. Was it a decentralised confederacy, or was it a unified nation state? From Boston to Cincinnati to New Orleans, no one, apparently, could agree. Visiting Congress, Frances Trollope reported “seeing man after man start eagerly to his feet” to declare “the entire independence of each individual state, with regard to the federal government”. (She pronounced this view “the very strangest political feeling that ever got possession of the mind of man”.)
Thirty years later, as war raged, her son equated the secession of 11 southern states with rebellion. Secession, he argued, was a “suicidal” power of “destroying a nationality”. The Constitution, he believed, had delivered years of good service, just like the old boots. “It has done its work,” Trollope stated. The question was how much longer the boots could last. “Those among us who are most inclined at the present moment to declare that the institutions of the United States have failed,” Trollope wrote, “can at any rate only declare that they have failed in their finality.”
Today, more than 150 years after the end of the American Civil War, the fundamental question of the relationship between the states and the federal government has returned to the centre of US politics and law. In controversies ranging from who governs at the border with Mexico, to abortion, voting, immigration, firearms and healthcare, the issues at the heart of public debate centre on one question: who is supreme—the states, or the federal government?
The stakes in this conflict could not be higher. On top of the familiar partisan divide between Republican red and Democratic blue states, a larger and more dangerous rift over the concept of federalism has opened up. Increasingly, individual states are claiming powers for themselves over issues that have for decades—perhaps centuries—been understood as the domain of the federal government. Governor Greg Abbott of Texas, for example, claims that his state’s power to police the border is “the supreme law of the land” and thus “supersedes any federal law to the contrary”.
In a partisan struggle, the prize is the control of the national government. Clashes between state and federal power run far deeper, threatening the constitutional foundations of the United States.
This November’s presidential election presents an especially urgent and hazardous combination of these conflicts. In the contest between Donald Trump and Kamala Harris, the partisan objectives are obvious: control of the White House, and secondarily Congress. But the campaign also includes a fight about federalism with deep roots in US politics. Trump is touting decades-old rhetoric of states’ rights and a weaker federal government, while Harris is reviving Franklin D Roosevelt’s 1930s-era liberalism, in which “freedom” from “want” and “fear” went hand-in-hand with a muscular national government. These two views of US federalism are fundamentally opposed, suggesting very different paths for the country after the election.
Trump has vowed to strip power from portions of the federal government if he is re-elected. He has threatened to shut down the Department of Education in order to “move everything back to the states where it belongs”. Project 2025, the conservative Heritage Foundation’s blueprint for a future Republican administration, pledges to “dismantle the administrative state and return self-governance to the American people”.
Yet there is an irony here. Trump’s calls for decentralisation along the federal-state axis are in tension with his avowed purpose of expanding presidential power, a project in which he has been aided by the Supreme Court. Its decisions this year to expand presidential immunity from criminal prosecution and to bar states from disqualifying him from their election ballots were critically important.
Trumpian decentralisation evidently has more to do with devolving power and disabling effective checks on the presidency than with any rigorous theory about the best allocation of state power. For Trump, the states are useful insofar as they can be weaponised against Congress. But states must be whipped back into line when they threaten to limit the power of a president—or an ex-president, as in the immunity and disqualification cases. In both cases, the Supreme Court’s conservative supermajority has enabled Trump’s opportunistic use of federalism.
Harris has claimed the mantle of FDR and the modern Democratic party, which frees her to embrace a powerful federal government. Evidence of her position was visible during her time in the Senate: in 2019 she co-sponsored a bill that would have legalised marijuana nationwide. The bill failed to pass, leaving the issue to a patchwork of state laws, some legalising and some criminalising marijuana use.
For Harris today, the issue of nationwide legislation is more fraught. She appears to understand that pursuing nationwide legislation on controversial topics such as marijuana and abortion could be politically perilous. After all, if a Democratic-controlled Congress could pass a law restoring the right to abortion across the US, a Republican Congress could just as easily enact a nationwide abortion ban. Given the current level of polarisation in US politics, voters might prefer a situation where at least some states offer the voter’s favoured policy, over a uniform federal law enshrining a nationwide policy to which the voter objects. If you’re not certain that your side of an issue will prevail in Congress, an unstable patchwork might be preferable to a nationwide rule.
Arguments about states’ rights have reached a level not seen in more than a century
Meanwhile, that patchwork is spreading. States are already claiming expansive powers, both for themselves and, potentially, for the rest of the US. The Supreme Court’s decision in 2022 eliminating the federally protected right to abortion sent states scrambling—to limit reproductive care, in the case of conservative red states, and to protect physicians who treat out-of-state patients, in the case of liberal blue states. Texas continues to carry out Governor Abbott’s hardline border policy, known as “Operation Lone Star”, which includes erecting razor-wire fences and using drones to halt crossings at the border with Mexico. Even as election day approaches, some key battleground states—among them, Georgia and Arizona—are still debating changes to their election laws that could have significant consequences for determining which candidate is victorious.
All across the country, arguments about states’ rights have reached a level that has not been seen in more than a century, since the Civil War and postwar Reconstruction periods. Could the United States be rushing toward what commentators and members of Congress alike have called “a national divorce”? Has American federalism run its course? Like Trollope’s old boots, has it “done its work”? Is it now “insufficient to carry on the nation in its advancing strides through all time”? And, if federalism fails, what does that mean for the Union?
No matter who wins the presidency on 5th November, these rifts will likely remain. The next phase of the American republic could accelerate these forces of decentralisation, leading, if not to an official divorce, then an informal separation. Fearful of losing at the national level, policymakers and voters in both red and blue states might arrive at an uneasy détente in which states control issues such as abortion and immigration. A Trump victory could bring an increasingly chaotic state of political Balkanisation as states scramble for control over key issues. This could have the paradoxical effect of enabling a president to amass huge power in his hands.
In either scenario, the obvious culprit would seem to be federalism. But might it be possible to redeem this foundational element of American constitutionalism?
To understand what the purpose of federalism—its “work”—has historically been, we can begin with one of the chief architects of the US constitutional system, James Madison. He believed that the Constitution, as it was drafted in 1787, offered a solution to the two most pressing problems of the new nation. These were what we might call the “federal problem” and the “republic problem”. Both stemmed from the century-plus history of the US as the western periphery of the British Empire. Both remain central to a productive review of American constitutional structure today.
The federal problem was one of combining a group of distinct colonial governments into a single functioning political entity. Each of the British North American colonies had its own local government dating back to the colony’s founding in the 17th century. Most of these colonial governments comprised a familiar set of elements: a legislature (often with two houses, the upper of which was appointed by the Crown); a governor (also royally appointed); and a judiciary (with some judges chosen by the Crown). At the top of each colony’s local government sat the Crown. Each colony’s government operated largely independently from the others. We can think of it as a hub-and-spoke arrangement, with the Crown as the hub and each spoke radiating out to a single North American colony. For the American founders, this arrangement gave rise to the federal problem: how does one build a union while still preserving some degree of autonomy in the member states?
The republic problem was also a legacy of British rule. It contained two further complications: one concerning size, the other concerning the role of the people.
The problem of size was one of constructing a republic on a massive, potentially continental, scale. When the Constitution was ratified in 1788, the US covered an area of around 828,000 square miles (or 2.1 million square km). As the drafters of the Constitution—many of whom had received classical educations—well knew, however, the handful of republics that the world had produced had covered only small territories, and all had ultimately failed.
The problem of the people related to sovereignty. Owing, once more, to their education in classical history and philosophy, the American founders had absorbed the belief that republics were the most desirable form of government. A republic was for them a state in which supreme power was held by the people, who were in turn encouraged to develop virtue and public spiritedness in the government that they created. In the founders’ view, the people were to exercise their power through representation, not through mass democracy. For the new republic, the problem of the people was this: what does it mean for supreme power to be held by “the people”? Where are the people in the framework of the Constitution—do they act through institutions and branches of government, or through some other, less formal route?
As he prepared for the constitutional convention of 1787, the studious Madison produced a 41-page memorandum that addressed each of these problems. Titled “Notes on Ancient and Modern Confederacies”, Madison’s treatise canvassed examples from the Amphictyonic League of classical Greece to the United Netherlands of his own time. One of the chief lessons he drew from these cautionary tales was that, in each, the central (or, as he termed it, “federal”) authority was too weak relative to the power of the component states. It had to be stronger, yet not so strong that it tipped the polity from a confederation to a unitary government that blotted out local authority. The American government should be a new type of entity, Madison believed: both federal and a republic.
In his Federalist Papers essays, which were published in New York newspapers in 1787 and 1788 to drum up support for ratification of the Constitution, Madison laid out his case for the federal republic. Picking up from his fellow Federalist Papers author Alexander Hamilton, who advocated a “Firm Union” as a “barrier against domestic faction and insurrection”, Madison also embraced “union” as the key to what the new nation should look like.
But Madison’s union was different: it was a “well constructed Union”. It had to be built as a system because it had to incorporate multiple levels of government—the states and the national government—all of which would operate at the same time, and in some cases over the same space, but with different purposes. Pulling the colonies—now states—together, but not too tightly together, would solve the federal problem. Spreading the polity over a greater distance would solve the republic problem.
This was Madison’s optimistic view of what we now call federalism: “The larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government,” Madison theorised in “Federalist No 51”. “And happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.” Republicanism (meaning rule by the people) and federalism (meaning multilayered authority) would be the two mutually reinforcing characteristics of the new nation.
By the time Madison died in 1836, his earlier vision of the federal republic had begun to fray. He and his fellow founders had succeeded in making “federal” resonate as both a word and an idea in public debate. It was a lodestar—a definition of the US. But as is often the case with important words, different people and groups claimed the word “federal” and carved out different, sometimes conflicting, meanings for it.
As I argue in my book The Interbellum Constitution, the first half of the 19th century witnessed a proliferation of competing ideas of “federalism” circulating among commentators, both elite and less so. The period beginning in 1815 and ending with the outbreak of the American Civil War in 1861 was an age of federalisms, plural. These were distinct and competing views of what the Union was and how power was distributed within its many levels of government. Wielded by Indigenous leaders, female political philosophers and Black abolitionists as well as lawyers, judges and politicians, these interbellum federalisms were profoundly different from the binary opposition between the federal government and the states, or between the centre and periphery, that today is seen as a key feature of the American political system.
The range of plausible versions of American federalism in this crucial period between the American Revolution and the Civil War was far broader than modern accounts admit. The messy norm of the early 19th century was concurrence, overlap and conflict—especially with respect to such important and controversial issues as slavery, migration and commerce. Our modern binary notion of federalism as necessarily involving the federal government versus the states is a product of a later period: the cataclysm of the Civil War and Reconstruction.
Why does this history of federalism matter? Because although it dates back nearly two centuries, it might offer an alternative vision for federalism today.
In recent decades, critics have dismissed federalism as what political scientists Malcolm Feeley and Edward Rubin provocatively call a “national neurosis”—an unhelpful hangover from the distant, slightly mystical, belief that the states are mini-nations possessed of full sovereignty. Other sceptics, principally from the political left, decry federalism as a fig leaf for conservative or even reactionary agendas. The paradigmatic example for them is in the rallying cry of “states’ rights”, invoked by southern governors as part of the white supremacist resistance to school desegregation following the Supreme Court’s 1954 decision in Brown v Board of Education.
In order for federalism to keep functioning, it must be rethought
Defenders of federalism, meanwhile, have sometimes found themselves pragmatically but reluctantly endorsing it as a mechanism for opposing federal policies—for example, when cities in blue states proclaimed themselves “sanctuary cities” and cited state autonomy in opposing the Trump administration’s immigration policies. A more robust defence of federalism, dubbed the “nationalist school of federalism” by one of its leading theorists, Yale Law School dean Heather K Gerken, has argued that “a committed nationalist ought to believe in federalism, just as a committed proponent of federalism ought to care about the states’ evolving role in our national system”.
And yet here we are in the United States in 2024, stuck in the same old pattern of states’ rights versus nationalism. Federalism as a concept has more to offer than tired dichotomies. It has not yet finished doing its work. But in order for it to keep functioning—for the boots to continue carrying Americans over stony roads—it must be rethought. Fortunately, history offers some insights.
In 1816, the Supreme Court decided a complex legal case involving a Virginia land dispute dating from the colonial period. The main opinion, by Justice Joseph Story, has rightly become a landmark in US law schools for its analysis of the power of the federal courts. But a less frequently read concurrence, by Justice William Johnson, also deserves a place in the canon for its creative theory of federalism.
The case pitted the Virginia state court against the Supreme Court in a struggle over which government had the final authority to settle the land dispute. The Virginia judges refused to abide by the Supreme Court’s order, arguing that their judgment was not subject to review, even by the nation’s highest court. Johnson agreed with the majority that the Virginia court was bound by the Supreme Court’s decision. But he wrote a separate opinion that took issue with the Virginians’ emphasis on state autonomy. The Virginians relied on the premise that the Constitution was merely a “compact” or agreement among the states, which otherwise retained their sovereignty.
Johnson agreed that the Constitution embodied an original agreement, but not between the states alone. Rather, there were three parties to the compact. “To me, the Constitution appears, in every line of it, to be a contract, which in legal language, may be denominated tripartite,” Johnson wrote. “The parties are the people, the states, and the United States.” The Union was created by the joint action of three parties. It was not simply a perpetual push-and-pull between the states and the federal government. The additional party was “the people”, whom Johnson presented as independent of either the states or the nation.
Johnson was a South Carolinian, a slaveowner and a son of revolutionaries. He believed in maintaining the founders’ legacy. Yet his theory of federalism is startling to modern ears. It is not what we expect to hear from such a person at such a time. First, he endorses the republican idea of the people as a single political actor. Second, he suggests that the people, as well as the states and even the United States, each existed prior to the Constitution. The Constitution did not create the states or the United States. They, along with the people, created it.
As Johnson’s theory demonstrates, the federal-versus-state binary has never been an accurate or complete picture of American federalism. The people are crucial actors in the scene, too.
We should take inspiration from Johnson’s three-part constitutional map. Instead of sitting by as passive spectators at a political tennis match, watching the volleys between Washington DC on one side and the states on the other, the people can enter the game as well. We have the power, through Article V of the Constitution, to change the existing version of federalism if we find that it has become too bound up in the states-versus-federal-government dynamic for the work we need it to do—not least to reinvigorate the people’s engagement in politics.
At the end of the chapter of North America focusing on the US Constitution, Anthony Trollope expressed the hope that it would survive the storm of the Civil War. He based his guarded optimism on what he viewed as one of the Constitution’s chief strengths: that it was set down in pen and ink, and that its words “contained in them less pretence of finality in political wisdom than other written constitutions have assumed”. Such a view might surprise the current conservative supermajority of the Supreme Court, whose originalist method of interpretation proceeds from the premise that the meaning of constitutional text is fixed at the time of its drafting.
Americans today need to rid ourselves of the pretence that the Constitution was designed to be final in order to carry on the real work with which it entrusts us. After all, we the people are one of the indispensable parties to the original tripartite contract that created the Constitution.
