The Ideological Origins of American Federalism (review)

Alison LaCroix's very good but at times mildly frustrating book "commences in the North American colonies in 1764," but starting there prevents LaCroix from measuring arguments about federalism that began with the Sugar Act against one of the most successful federal systems that had actually existed up to that point in early modern European history. This federal system was at its most successful when those who lived in it managed to avoid focusing on ideological belief systems, since none of those available to them could justify how the empire actually functioned. Omitting the story before 1764 makes LaCroix's book less effective in its discussion of the pre-Revolutionary period than it is for the years of the early republic. The fundamental problem posed by the innovative move of Parliament to lay duties on the colonies for purposes of revenue and not solely for trade regulation was that resisting these acts could not conform to a business-as-usual practice where Parliament governed the oceans and acted in the colonies only when it could secure voluntary consent.

LaCroix argues that the primary way colonists imagined overlapping loci of authority was by claiming internal sovereignty and by acknowledging Parliament's external authority. Indeed, she argues that internal versus external distinctions of taxation "filled the pages of pamphlets" beginning with the Stamp Act, though she doesn't cite any of them after making this claim (42). But not including the prehistory causes LaCroix to neglect what I think is the central part of the early story of (British) American federalism. When, as LaCroix rightly points out, colonists first began to articulate federal ideas in response to the Sugar and Stamp Acts, they could not rely on the actual working federal system they were living in because dividing sovereignty on the internal versus external axis could not give them what they needed: an argument that denied Parliament the authority to tax them.

By not focusing on the distinction men like William Pitt and James Otis were making, or the fact that colonists opposed all forms of parliamentary taxation, LaCroix misses the significance of the Declaratory Act. She says that it "deliberately widened the scope of authority Parliament claimed for itself," and points to the final sentence that declared that Parliament could legislate for the colonies "in all cases whatsoever." Yet in fact with this subtle act Lord Rockingham was trying to restore the de facto imperial federalism that had long existed. A suggested version of the act had read "as well in cases of taxation as in all other cases whatsoever," and Rockingham had shrewdly dropped the word tax, leaving the issue of taxation vague. He also nearly simultaneously repealed the Stamp Act, the tax the colonists could actually prevent. Parliament kept the external tax but it was now further enveloped in the vagueness that had already confused even Pitt, an intended confusion assisted by the Declaratory Act's making no explicit mention of Parliament's right to tax the colonies. One does not need to have the colonists suddenly discover with the Townshend Acts that they also didn't like external taxation, an unnecessary confusion to which LaCroix contributes.

The much stronger part of the book is LaCroix's discussion of the Constitutional Convention and the effort to theorize a federal republic. She shows how as late as the first several weeks of the convention Madison still depended on the British empire's theory of federalism, a federalism based in overlapping legislative authority where ultimately one supreme legislature claimed sovereignty. Madison's inclusion of an absolute veto for the national legislature over state legislatures was based on the authority Parliament had claimed over colonial legislatures.

The years of the American Revolution had forever exposed the unarticulated imperial federal system based on differing geographical sovereignties of internal versus external, a system that could never find a justifying theory given that imperial...