Originalism, Federalism, and the American Constitution: A Historical Inquiry (review)

In this short yet masterful study, the distinguished legal historian Edward Purcell exposes fundamental problems with originalism by providing a concise overview of both the nature and consequences of American federalism. Realizing either task is an accomplishment. Together the achievements should make this volume mandatory for any constitutional historian or advocate.

Of the two challenges, perhaps the greater is saying something new about the idea that the Constitution should be construed based on the "original understanding" of those who ratified its provisions. Doing this is no mean feat given the immense sound and fury the topic continues to generate. Much of the literature critiques originalism from a theoretical viewpoint, suggesting, for example, that other sources of constitutional meaning are preferable, such as evolving national traditions or fundamental conceptions of justice. Much of the rest considers the historical basis on which originalism must be based. Some of these critiques question certain originalist assertions by exposing their simplistic historical assumptions. Others offer their own rival, and often simplistic, alternatives. Many do both. Common to all is a focus on originalism front and center.

Purcell, by contrast, places the historical account first and on its own terms. The inquiry begins by demonstrating that the Founders disagreed more and settled less with regard to federalism than they typically did with the Constitution's many other underdetermined doctrines. In this Purcell echoes Jack Rakove's Original Meanings (New York, 1996), still one of the best critiques of the originalist approach. Yet Purcell goes further by taking the story past the Founding to show how unstable, unexpected, and dynamic federalism proved to be over the next two centuries. Purcell does not assert that history provides no guidance at all, at least at a general level. With regard to originalism as usually practiced, his inquiry is, in the end, devastating.

The first part of the book takes up the argument that the " 'original' federal structure was marked by four inherent characteristics" (6). First, Purcell brilliantly characterizes the Constitution's commitment to federalism as "doubly blurred" (17). By this he means that American federalism was "ambivalent" (17) in according two levels of government overlapping powers to safeguard vague and contested values to keep one another in check. In addition, he argues that this structure was also "ambiguous" (24) because the provisions establishing the authority and borders concerning these two levels of government were incomplete and imprecise. Second, federalism from the first was also "fractionated" (38). Separation of powers at the Federal level complicated and multiplied the relationship between the national government and the states. On the state level, regional coalitions among states and internal divisions within states further fragmented power relationships.

Other features were perhaps less obvious, yet still present at the creation. The third overall characteristic that Purcell identifies is the doctrine's instrumental aspects. Here, the basic idea is that conceptions of the proper balance between federal and state power have less to do with any principled ideal than with how such a balance serves chosen political ends at any given time. In this way defenders of slavery such as John C. Calhoun and champions of individual liberty such as William Brennan have advocated increased state authority in different contexts. Finally, Purcell notes how federalism is contingent. On this view federalism invited pragmatic change given that the Constitution authorized express amendment and that its general and imprecise provisions compelled ongoing interpretation.

The second part of Purcell's account looks at some of the consequences that these features produced. Mostly the results ring changes on the theme of ever increasing and usually unanticipated complexity. Federalism first of all produced what Purcell terms a pragmatic "kaleidoscopic" (85) form of politics in which Federal/state relations played only a part, often getting lost amidst regional, urban, rural, party, and institutional politics, to name a few other divisions. Separation of powers further added to the mix, especially as the Executive, in dominating the national government, became a dominant...