Protecting Liberty in a Federal System: The US Experience
University of Virginia School of Law
PATTERNS OF REGIONALISM, Hart Publishing, 2005
U of Texas Law, Public Law Research Paper No. 77
This chapter, written for a European audience and thus assuming nothing, reviews the relationship between federalism and liberty over the long run of American history. Compared to other federal systems, and even compared to American units other than states (such as Puerto Rico and Indian tribes), the basic system of American federalism accommodates rather modest differences among the fifty states. American federalism arose not from deep ethnic divisions, but by default, because the original colonies were so isolated that no form of united government could have been imagined.
Two views of federalism have competed through most of American history: that states protect liberty against the dangerous federal government, which must be kept small, and that the federal government protects liberty against recalcitrant states, and must be large enough to do so. The first view dominated until the Civil War; the second view has dominated since, but neither view has ever entirely died out. Both views are traced through American history, with emphasis on the great turning points of the founding, the Civil War, and the Second Reconstruction. The current federalist revival seems more likely to cripple federal protection of liberty in the states than to create any real capacity for states to protect liberty against the federal government. But that of course remains to be seen.
Number of Pages in PDF File: 49Accepted Paper Series
Date posted: October 19, 2005
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