The creation of American federalism, 1765-1787 (James Madison)

Scholars have long recognized that modern federalism was an American invention, yet they typically dismiss federalism as a theoretically inconsistent form of government. They deem federalism inconsistent because it appears to violate the political maxim that sovereignty is indivisible. Moreover, they maintain that the Constitution's Framers likewise recognized the Constitution to be a theoretically inconsistent hybrid, born of political compromise, which attempts to reconcile two incompatible forms of government, the one confederal, the other unitary.; I argue that the Constitution embodies a coherent theory of government-federalism---and I contend that Americans laid the foundations of this new form of government in the decade prior to the Revolution. By carefully examining primary materials from the pre-Revolutionary era, I show that the key to their theoretical innovation lay precisely in their deliberate efforts to remove the issue of sovereignty from their debate with England. Aware that a debate over sovereignty would undermine their claim for colonial home rule, aware that in politics sovereignty is often the handmaiden of tyranny, the Americans dismissed the issue of sovereignty altogether, replacing it with an argument rooted in natural rights theory and an innovative, modern conception of constitutional government. I show how federalism became a theoretically-consistent form of government when the Founders replaced sovereignty with natural rights.; In the remainder of the dissertation I endeavor to show how the Americans, having promoted a new theory of government devoid of a grounding in sovereignty, applied this theory institutionally. I claim that the political institutions commonly associated with federalism, such as judicial review, likewise have their roots in American pre-Revolutionary thought.; In the last chapter I caution that contemporary, culturally-diverse federal regimes are being compromised by the reemergence of sovereignty as a predominant political principle. Federalism is not sustainable in the face of claims of sovereignty---claims which often breed political intolerance and absolutism in diverse and divided societies---and it is precisely in diverse federal polities where assertions of sovereignty are likely to arise and are most destabilizing.