Rossum's thesis is dynamite to liberals and conservatives who would have the Court intervene in federalism disputes to preserve the prerogatives of their pet constituencies. It will be particularly disconcerting to readers who believe that federal and state powers can be enumerated in sufficiently clear terms to allow judges the right and duty to police the resulting boundaries. After all, the standard version of the growth of federal governmental power during the New Deal and subsequent decades proclaims that federalism died with a series of landmark rulings from 1937 to 1942. The implication is that if the Court would only revert to something like its pre-1937 jurisprudence we could end up with "real federalism" again. Rossum argues, however, that this view is both illiberal and the very antithesis of the framers' original idea of federalism, disregarding the principal means through which liberty was to be secured in the American constitutional order.
Federal power was not to be restrained, on the original view, by ineffectual "parchment barriers" or the "cloudy medium" of words. Rather, it was to be restrained, in the words of James Madison, by "so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places." Alexander Hamilton pointed out in The Federalist that the Court's power to invalidate congressional measures was limited to those rare instances in which Congress disregarded "certain specified exceptions to legislative authority," such as passing legislation akin to a bill of attainder or ex post facto law. These types of cases—judicially manageable—were qualitatively distinct from cases involving the division of federal and state powers—matters not judicially manageable. Questions of the latter type did not involve "specified exceptions" to federal lawmaking but, rather, prudential judgments, which had to be "agreed to by a Senate elected by state legislatures, concerning the outer reaches of delegated congressional powers." Decisions such as these were immune to judicial review because they were not—and could never be—"contrary to the manifest tenor of the Constitution," which Hamilton had stipulated was the precondition for judicial invalidation of federal or state laws.
If federalism was to be protected structurally, not judicially, then of seminal importance to this structure was the mode of electing the Senate. It was this mode of election (by state legislatures) and not the equal representation of states that was the critical element of the Senate's role in federalism.
There were two reasons why it was critical that senators be elected by their state legislatures rather than popularly, as the 17th Amendment, adopted in 1913, provides. First, as George Mason remarked, "A private Citizen of a State is indifferent whether power be exercised by the [General] or State Legislatures, provided it be exercised most for his happiness." In other words, when it comes to understanding federal and state exercises of power—how power is exercised and how it should be exercised—the lay voter is clueless. Second, it was only through the medium of legislative selection that senators could be trusted to represent the states as states in the national legislature. The Constitution was based on a political anthropology that understood men to be ambitious and self-interested. As long as state legislatures remained the masters of senators, senators could be counted on to look after state interests. Once the 17th Amendment and the direct election of senators severed this tie, state interests and senatorial interests would go their separate ways. The legacy of this separation is now all too familiar: after the amendment's ratification, the national government's powers grew like topsy.
Rossum's argument is refreshing for many reasons, not the least of which is that it speaks to the increasing judicial rationalism that has been imposed on American politics, the idea that messy political disputes that depend on complex political negotiations, compromise, deliberation, and judgment can be reduced to simplistic, frequently simpleminded, legal formulae. The presumption that the judiciary has not merely the authority but the moral, social, and political knowledge necessary to resolve complex political disputes has been the hallmark of the Supreme Court since the Warren era, particularly since the reapportionment decisions of the 1960s. Yet as Rossum reminds us, the Burger and Rehnquist Courts have been the most activist in the field of federalism disputes, resurrecting a federalism jurisprudence in National League of Cities v. Usery (1976) and moving this initiative forward through a host of decisions in the 1990s that attempted to protect state sovereignty on various grounds, including idiosyncratic constructions of the Commerce Clause, Section 5 of the 14th Amendment, and the 11th Amendment.
As compelling as Rossum's argument is, it is fair to ask whether the framers intended as emphatic a separation of judicial review from federalism as he suggests. To take two examples: In McCulloch v. Maryland (1819), Chief Justice John Marshall remarked, "Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land." In an endnote to his chapter on "Marshall's Understanding of the Original Federal Design," Rossum explains this comment as repeating a distinction Marshall had developed earlier in the case between federalism questions that concerned "the great principles of liberty" and those that concerned how "the respective powers of those who are equally the representatives of the people, are to be adjusted." The former questions were susceptible to judicial review. The latter were not: "on these matters, the Court would have to defer to congressional practice."
But this is not, apparently, what Marshall meant by his reference to the Court's "painful duty." On Marshall's reading, congressional powers were limited to the ends enumerated in the Constitution—and this was true not only when congressional acts were in explicit violation of the Constitution but even when Congress acted pretextually. There is little doubt Marshall gave Congress broad discretion when determining the means of exercising congressional powers. But it is equally clear that federalism disputes concerning the ends or objects of congressional legislation were subject to judicial review. And if the judiciary was in for a penny, it was in for a pound. All of the messy legal disputes over where precisely federal powers ended and state powers began became the prerogative of judicial review.
Marshall was not alone in his assessment. In The Federalist, for instance, James Madison affirmed both that the federal government's "jurisdiction extend[ed] to certain enumerated objects only" and that "in controversies relating to the boundary between the two jurisdictions [federal and state],the tribunal which is ultimately to decide, is to be established under the general Government." Such a tribunal was "clearly essential to prevent an appeal to the sword, and a dissolution of the compact; and that it ought to be established under the general, rather than under the local Governments; or to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated." However much Madison sought to keep federal power in check through the structure of the national government, he contemplated those instances in which resort to an impartial federal tribunal would be necessary to resolve federal-state boundary disputes.
None of this detracts from Rossum's penetrating analysis of historical and legislative texts or his demonstration of the difficulty the Court has had constructing coherent tests to be applied in federal-state conflicts. Readers may find such tests a necessary prerequisite to preserving the American constitutional order. But they may also agree with Rossum that judicial intervention on behalf of original federalism has undermined the animating objective of the 17th Amendment. Rossum captures the constitutional irony: "An amendment, intended to promote democracy, even at the expense of federalism, has been undermined by an activist Court, intent on protecting federalism, even at the expense of the democratic principle."
Rossum has provided us a profound and scholarly book. It may not leave us much hope for the future of American federalism. It may remain silent on precisely why, if federalism questions were simply matters of prudential judgment to be protected structurally, there was any need to enumerate specific congressional powers or limitations on congressional and state prerogatives in Article I of the Constitution. Whatever its shortcomings—and these are very few—Federalism, the Supreme Court, and the Seventeenth Amendment presents a thoughtful and persuasive account of how an amendment, whose effects on federalism were unexplored at its adoption and remain forgotten today, has transformed our political life. Tocqueville warned that that the insatiable demands of equality could have corrosive effects on those constitutional forms essential to democratic regimes. In the case of the Senate, more democracy has meant less federalism. And less federalism has meant the growth of that tutelary state which Tocqueville warned could "extend its reach over the whole of society, covering its surface with a network of complicated, minute, and uniform petty rules."