Federalism

My Review of an Important New Book on the Supreme Court's Impact on American Federalism

The book by political scientist Michael Dichio argues that the Court has done more to promote centralization than protect states, and is the most thorough analysis to date, of this longstanding issue..

|The Volokh Conspiracy |

Publius: The Journal of Federalism recently published my review of political scientist Michael Dichio's important new book The US Supreme Court and the Centralization of Federal Authority. Although I have some disagreements (detailed in my review), this is an impressive work, and I highly recommend it to anyone interested in the subject. My review is available for free on SSRN. Here's the abstract:

Does the U.S. Supreme Court protect the states from the expansion of federal authority? In this important new book, political scientist Michael Dichio argues that the answer is "no." To the contrary, he contends that, throughout American history, "the Court …. has persistently acted as an important instrument of the broader central state, expanding federal authority over society." The theory that the Supreme Court expands federal power at the expense of the states is not a new idea, having been first raised by anti-Federalist critics of the Constitution over 200 years ago. But Dichio provides the most thorough and wide-ranging defense of it to date, drawing on an extensive database of notable Supreme Court decisions from 1789 through 1997. Among other things, he shows that the Court constrained the states in important ways even in historical periods that are often thought of as high points for "states' rights," such as the Jacksonian era and the late nineteenth century.

Dichio's analysis is, in many ways, compelling, and is a major contribution to the literature on federalism and judicial review. But some of his methodological choices overstate the centralizing tendencies of the Supreme Court. He also unduly downplays some key ways in which the Court promotes decentralization of power. While the Supreme Court has never been a consistent ally of state governments seeking to limit federal authority, it is also not quite as consistent a centralizing force as Dichio suggests.

The final published version is available here, albeit behind a gate (the final version differs very little from the SSRN version, except in format and pagination).

I previously wrote about this issue in a 2017 book chapter, published in Nicholas Aroney and John Kincaid, eds., Courts in Federal Countries: Federalists or Unitarists?,  (University of Toronto Press). My conclusions are similar to Dichio's on several key points. But Dichio covers a wider range of cases and historical periods than I did. There is some disagreement on such questions as how to assess federal judicial decisions that protect individual rights against state and local governments, and also whether it is appropriate to classify decisions where the Supreme Court upholds federal laws against constitutional challenges as cases where the Court promoted expansion of federal power (as opposed to merely refused to try to limit it). In my view, discussed in both the 2017 chapter and in my review of Dichio's book, many judicial decisions protecting individual rights against state and local authorities have a significant decentralizing aspect, because they empower individuals and civil society.

The debate over the relationship between federalism and judicial review will no doubt continue. But Dichio's book does much to increase our knowledge of this crucial subject.

It is perhaps worth noting that the book is endorsed by Volokh Conspiracy co-blogger Keith Whittington, who writes that "Dichio takes a fairly unique approach to thinking about the relationship between the US Supreme Court and the development of the American state. Scholars interested in American political development and historical work on the law and the courts should grapple with the evidence on offer here."You can't go wrong with a book backed by two different VC bloggers!

 

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  1. A central government institution favors the central government.

    I look forward to Mr. Dichio’s next book: “Water is Wet”

  2. Indeed. It would be shocking if the Court didn’t behave this way, give who controls its membership. Having the federal judiciary chosen by federal officeholders is perhaps the most profound structural flaw in the entire document, having as it does the power to render everything else moot.

    1. It is the judiciary’s Constitutional function to defend our rights from abuse. 9A explicitly guarantees rights which have never been listed, That is the court’s job. It was southern racists and the KKK who LIED that a “unelected federal judges” were violating states rights — originally to defend Jim Crow laws, later as Orval Faubus said in 1957, after Eisenhower sent federal troops to defend the rights of 9 school kids. NOT usurp states rights. DEFEND rights from abuse by state (or any) level of government.

      States don’t have rights. Only people do. SCOTUS defends our rights from abuse by any level of government, as an EQUAL branch, as a check against the other two. As we all learned in junior high.

      The Klan, like Ron Paul, is REALLY saying SCOTUS has NO power to defend individual rights, thus we are defenseless. Yes, that stupid. That is why God invented libertarians!

    2. Even if this is valid, what is the solution? How could the “flaw,” hardly the “most profound” one, have been avoided?

      Some one has to select the judges, after all, and by your logic they will favor whoever does the selection. You might prefer that the court favor state governments, of course, but that’s no more than your political preference.

      1. Yeah, that’s true: Somebody is going to pick the judges, and the judges will, inevitably, favor that someone. If you want centralization of power, pick them at the highest level. If you want to forestall centralization of power, have the states pick them.

        Or you could mix things up, have them nominated by a federal officer, and confirmed by a body chosen by state legislatures. THAT was the original scheme, which only failed because the state legislatures delegated the selection of Senators to the public, rendering the Senators purely federal level officers with every motive to enhance federal powers.

        Thus the answer I actually propose, that confirmation of federal appointees is a power which should be taken away from the Senate, and given to a body consisting of all the states’ governors. I’m sure they’d be able to find time in their schedules for it, and as they are first and foremost state officers, their motives will run contrary to the President’s, and counter him.

        Not going to happen without a Convention, of course. And people understanding why things went wrong in the first place.

        1. rendering the Senators purely federal level officers with every motive to enhance federal powers.

          Funny.

          I recall a time when a large number of senators – not a majority, but quite a few – would strongly oppose federal intervention in what they regarded as state affairs. Today we have Senators who seem to want to restrict federal power, at least in some areas.

          I think your ideas about how federal officers automatically seek to increase federal power are wrong-headed. Politicians want to be in office. They will do what keeps them there, or moves them up a notch, whether that’s championing federal action or blocking it.

          Also, that something was the original scheme is an interesting historical fact, but is no evidence at all that it was superior to the way we do things now. It takes a vivid imagination to think that state legislatures would do other than embroil the selection in the various conflicts and corruptions of state governments.

          1. That’s why understanding TRUE federalism is so critical, versus the authoritarian bullshit of the KKK’s “states rights.” States don’t have rights. People do.

    3. At the time of the framing, senators were appointed by state legislatures. The same logic would suggest the senators could be counted on to represent the interests of the people appointing them.

      The move direct election of senators changed the calculus. But this in turn required a culture where people wanted centralized power. A complicated issue is that the region most supportive of states rights, the south, did so in substantial part for reasons that have since become largely discredited.

      1. YES. Direct election DESTROYED the most powerful check on federal power.

        is that the region most supportive of states rights, the south, did so in substantial part for reasons that have since become largely discredited.

        States rights is not federalism, despite the racist bullshit of Ron Paul. It was an invented excuse to deny the EQUAL RIGHTS guaranteed by the Constitution.

  3. Well, duh. Has anyone ever thought otherwise? Of course, the Constitution does not reflect or enact some kind of Unified Theory of Federalism. Rather, it makes some things concerns of the federal government, some concerns of the states, some overlapping concerns, and some up for grabs. That a particular decision is or is not “federalist” under some general theory of federalism is neither here nor there. And, obviously, if the central government doesn’t act, there won’t be anything to sue over, so litigated cases will disproportionately involve claims of central government encroachment. It’s hard to lose cases that nobody brings.

    1. How can we ignore “encroachment” by states … of our unalienable rights? Or the 9A protection of “unenumerated” (never specified) rights?

      Our rights are superior to any and all powers of any and all levels of government. Fighting over powers is most often a diversion from the core principle of delegated powers. By those who seek to violate those rights, a practice tracing to Jim Crow and the KKK.

      1. There should be a new Godwin rule about the KKK. If you mention them as if they are relevant to anything in the modern age you immediately lose the argument.

        1. Spoken like a true racist — or ignorant of the substantive issue — and elementary history — which you’ll also whine about, like a pussy.

          In 1957, Arkansas governor Orval Faubus activated his state militia, armed force to stop 9 black kids from registering at Little Rock’s Central High School. President Eisenhower sent armed federal troops, authorized to use force if necessary, to defend the rights of nine kids. It was a landmark victory in civil rights but … you never heard of it!

          Faubus “justified” his action as defending his state from an overreaching SCOTUS .., EXACTLY as I said … .and EXACTLY the way racists and homophobes (like Ron Paul) have argued that the courts have NO POWER to defend Constitutional rights … which happens to be their primary function.

          Shame on you for defending Orval Faubus..

          1. I think you have a serious mental issue. Please get help.

            1. Gotcha!

              which you’ll also whine about, like a pussy.

              I think you have a serious mental issue. Please get help.

              CALLED OUT AS A LIAR … GOES FULL PSYCHO

              RACIST THUG DENIES THE 1957 EVENTS IN LITTLE ROCK , ARKANSAS, A MAJOR BREAKTHROUGH IN THE CIVIL RIGHTS ERA.

              https://www.history.com/topics/black-history/central-high-school-integration

              (Posted in self defense of multiple aggressions by a … BULLY/THUG)

  4. What is meant by “states rights??” All too often it’s the KKK version endorsed by Lester Maddox, Orval Faubus in his 1957 assault on individual liberty for Little Rock’s Central High, and — worst of all, by Ron Paul’s KKK-inspired fascism
    a) Brags of sponsoring a bill that would have forbidden SCOTUS from even considering any challenges to DOMA Gays would have been the first group denied the defense of constitutional rights since slavery.
    b) When THAT failed, his anti-liberty whining about “Rogue judges” is as obscene as the goobers who whine about judges “inventing rights.”
    c) That judges have NO power to defend our righst.n

    The 9th Amendment STRICTLY lImits the 10th.- And no, states cannot have powers never delegated.

    The Federalism bitching is all too often an attack on SCOTUS defending individual rights, which is their job. Three equal branches. Balance of power. Checks and balances.

    The 9th was once labeled “the libertarian amendment.” It incorporates the Declaration’s unalienable rights into the Constitution.

    The 10th deal with unenumerated POWERS, like traffic laws and the like. The 9th protects unenumerated RIGHTS. Umm, rights are superior to powers!

    9A
    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    We have rights, never listed, which no level of government may deny or disparage. WHAT ARE THEY?

    THAT is what only SCOTUS can do. Did the founders “forget” to list them? Or did they refuse to? EVERY recognized right was first “acknowledged” by a court or tribunal. Our fundamental rights include Life, an unspecified packaged called Liberty, and unspecified package called pursuit of happiness. They are not “invented.” The Founders, being more educated than we see now, KNEW that rights had always evolved, and always would, in response to government action. “Can government do that?”

    Only the Executive and Legislative branches can violate yet-unacknowledged rights. And THAT is the basis for Constitutional Review, established by Marbury v Madison.

    Those who disagree are saying, literally, that we are defenseless against abuses by state governments. And now you know, perhaps, WHY states had to ratify (accept) the entire Bill of Rights, .
    Let the screeching begin …

    1. “worst of all, by Ron Paul”

      [Wipes spit away.]

      Of course, Ron Paul is the worst person in US history. It is known.

      1. Ron Paul is not the worst person in American history. Not nearly.

        He is, however, someone justifiably dismissed as unhelpful and objectionable by most Americans in the context of politics, especially in the context of educated, reasonable, modern, tolerant Americans.

        Others at the fringe may have difficulty recognizing that Mr. Paul is viewed that why and why Mr. Paul is viewed in that manner.

        1. http://www.rawstory.com/2011/03/congressman-ron-paul-says-he-supports-defense-of-marriage-act/

          “I supported the Defense of Marriage Act, … I have also cosponsored the Marriage Protection Act, which would remove challenges to the Defense of Marriage Act from the jurisdiction of the federal courts”

          1. Listed as cosponsor
            https://www.congress.gov/bill/108th-congress/house-bill/3313/cosponsors

            (wipes vomit from mouth) SHAME ON YOU

        2. I agree.

          Lots of worse people in American history than Ron Paul. But that’s a low bar.

          Paul is definitely high on the “loathesome” scale. Remember his newsletters?

          1. He’s even worse on gays, if possible.
            He may even be the intellectual godfather of the alt-left, with his wacky states rights over federalism con.

  5. I’ll wager that the Federalist Society will invite Michael Dichio to discuss this book. I look forward to hearing it.

  6. Remember when some Republicans in the Senate threatened to “reform” the Supreme Court if they didn’t shape up and dismiss a case that had been granted cert? Yeah can you believe they did that? Don’t these Republicans believe in the rule of law? Don’t they understand that courts are independent and shouldn’t be threatened by the political branches? This is just Orange Man Bad fascism playing out!

    Oh wait, that was some Democrats that made this overt threat yet the media just decide not to cover it. Could you imagine what the CNN headlines would have been if the Trump administration had filed such a brief???

      1. Surely you’ll soon be deep enough in dementia that you’ll forget how to use a computer, and we’ll be rid of your screeds.

        1. (Posted in self-defense of a DEFENDER OF RACISM)

          Surely you’ll soon be deep enough in dementia that you’ll forget how to use a computer, and we’ll be rid of your screeds.

          DEMENTIA = KNOWING WHAT HAPPENED AT LITTLE ROCK ARKANSAS’ CENTRAL HIGH SCHOOL, WHEN EISENHOWER SENT TROOPS TO DEFEND 9 BLACK KIDS FROM YOUR RACIST ILK!!!!

          RACISM = denying it happened.

      2. And I am the crazy one…?

        1. And I am the crazy one…?

          MORE WHINING? PROVEN at the link after I predicted you’d. “whine like a pussy”

          RACIST THUG DENIES THE 1957 EVENTS IN LITTLE ROCK , ARKANSAS, A MAJOR BREAKTHROUGH IN THE CIVIL RIGHTS ERA.
          https://www.history.com/topics/black-history/central-high-school-integration

          (Posted in self defense of multiple aggressions by a … BULLY/THUG)

          1. And I thought Kirkland was crazy…this guy takes the cake from him!

              1. What proof is that?

                1. Denial = Cowardice

                  Those who care will click See your KKK BULLSHIT — And your IGNORANCE of the 1957 events at Little Rock’s Central High, a MAJOR event in civil rights that ,,,, YOU NEVER HEARD OF! (OMFG)
                  Keep braying like a jackass, PROVEN a bigot.
                  Yeah, I predict you’ll AGAIN be a whiny pussy,
                  Your ilk is SO predictable.

                  1. OOPs forgot your WACKY DENIAL that Little Rock ever happened.
                    Here’s the link proving your IGNORANCE on that, per your CHILDISH INSULT.
                    https://reason.com/2019/08/20/my-review-of-an-important-new-book-on-the-supreme-courts-impact-on-american-federalism/#comment-7902688
                    Where I also link you to the HISTORY of the event.
                    GOOD GOD! Anything else, blowhard?

                  2. I never even said anything about this….
                    Do you need a refill on your lithium pills?

                    1. Pay attention, goober. YOU DENIED IT.
                      And the link PROVES you lied AGAIN.

                      You also REFUSED to supply a source for your original baloney. Why not stop trying to bully your way with BULLSHIT? Or get an ego transplant.

                      Do you need a refill on your lithium pills?

                      Keep acting like a punk, and you shall be treated as one.

                      Your choice.

            1. Takes the cake, swallows it with a bottle of Everclear, then projectile vomits it over everything in sight. Hihn’s new incarnation is actually nuttier than his old.

              Mind, dementia IS progressive, so that’s hardly surprising.

              1. (posted in self-defense of another INSANE assault)

                ANOTHER RIGHT-WING GOOBER denies the 1957 events in Little Rock Arkansas … when President Eisenhower sent federal troops to defend the rights of nine children … from a state militia, activated to use armed force against nine children.

                WHY WOULD HE DEFEND SUCH SHAMEFUL RACISM? (wink, wink)

                Bellmore’s TOTAL contempt for individual rights and constitutional guarantees was even MORE blatant here — where he is INSISTS we’ve had multiple Constitutional Conventions since 1789!!!!
                (Do NOT read this with a full bladder!)

                https://reason.com/2019/08/20/the-fifth-circuit-divides-on-qualified-immunity-and-originalism/#comment-7902972

        2. And I am the crazy one…?

          … who REFUSES to supply a source, when challenged..

          Nobody said you are crazy … but a liar … as so proven.
          So your “crazy” assertion is also a lie. Typical of your alt-right.
          Are you even capable of a civil discussion, without all the bluster, huffing and puffing?

    1. that was some Democrats that made this overt threat yet the media just decide not to cover it

      So where did you hear about it? And if the proximate source was some blog or similar forum, where did they hear about it?

      1. Conspiracy theorists be wanton bullshitters. For their holy cause.

      2. You can look up the amicus filing in the public record if you like.

        1. HOW LAME IS LAME?
          REFUSES TO PROVIDE SOURCE FOR HIS RACIST BULLSHIT.
          THEN GOES FULL COWARDICE/I>

          You can look up the amicus filing in the public record if you like.

          1) Cowardly.
          2) + Too chicknshit to even name the brief!
          3) Reveals his BULLSHIT – an micus is NOT a “threat,” as he claimed..

          How many times can he humiliate himself on a page … with PROVEN RACIST bullshit? … even DENYING the shameful 1957 events events at Little Rock’s Central High .. a major milestone in civil rights … EVER HAPPENED?

          This is NOT your Klavern!

        2. That’s certainly something someone could do, if someone or something had tipped him off that it was worth doing and why. Like maybe a press report.

          1. That, too!

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