Const Law II: The Theory and Practice(s) of American Federalism

• Semester: Spring 2025
• Course ID: 381C
• Credit Hours: 3
• Unique: 28855

Description

Federalism is a contient aspect of American constitutionalism.  That being said, it is also important to recognize that literally from the very beginning of the constitutional republic in 1789, the operative meaning of "American federalism" has always been a source of contention, which, of course, became bitter enough by 1860 to trigger secession and a subsequent war that killed approximatly 750,000 combatants (who may or may not be identified as "Americans").  So we will be looking at a lot of the "theoretical" issues surrounding federalism, beginning with the possible meanings of "We the People" that purported "ordain" the new polity.  Is there one singular "American people" (and, if so, who is contained within it?), or is the "united States" (as some copies of the Declaration of Independence spelled the name of the new country) composed of the uneasy joinder of distinctly separate "peoples" living in the different states? The first Supreme Court case we will read--and ponder for at least a full class--will be beginning Chisholm v. Georgia (1793), concerning so called "sovereign immunity" of states from being sued in federal courts.  We'll also be reading the Kentucky and Virgninia Resolutions of 1798-99 and their particular take on the basis of the Union, including the possibilities of "nullification" and even, perhaps, secession.  But, obviously, these "theoretical" issues are complemented by extremely "practical" concerns.  How should one respond to states that attempt to secede; and even after secession is subdued (by force), what might "reconstruction" of a federal union might mean, in both theory and in practice?  Moreover, it will be helpful, in understanding "American federalism," to pay at least limited attention to other forms of federalism around the world.  Should, for example, all sub-national units be viewed as "equal" (symmetcial federalism), or is it both necessary and proper to recognize that some such units are so substantially different from others, as with, for example, language or concentration of natural resources, that it is legitimate to adopt "asymmetical federalism."  

We will pay suitable attention to classic Supreme Court cases and to more recent articlations by the Court as to the complexities generated by subnational-states in a Union.  But "suitable" does not mean exclusive. And, of course, Supreme Court decisions must always be understood in terms of their wider political and historical contexts.