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09/13/2021

John Grove Reviews Max Edling's "Perfecting the Union"
Michael Ramsey

At Law & Liberty, John G. Grove:  America's Federal Settlement (reviewing Perfecting the Union: National and State Authority in the US Constitution by Max Edling (Oxford Univ. Press 2020)).  From the introduction: 

Max Edling’s recent book, Perfecting the Union, is a succinct, valuable account of the framing of the Constitution with an eye toward the division of power between the federal and state governments. It draws heavily upon, and might even serve as a useful introduction to, the body of scholarship he refers to as the “Unionist” interpretation of the American founding. The Unionist view stresses the importance of the theory and practice of federalism to understanding both the American Revolution and the framing and adoption of the Constitution.

The Unionist view shows how central the debates over the imperial federal structure were to the American Revolution, which pitted the newly dominant paradigm of parliamentary sovereignty against the rights of colonial assemblies which had been nurtured by the metropole’s “salutary neglect.” Independence, then, brought forth on this continent a new problem: how would the thirteen “free and independent states” order their relationship with one another? What kind of federal union could capture the best parts of the old colonial arrangement—unity and strength abroad, and self-government at home—without the monarchical loyalty that had structured the old order?

The Federal Compact

Edling believes that to understand the Constitution, we have to understand the long public deliberation that took place on these questions, running from the Articles of Confederation, through the various failed attempts at reform in the 1780s, the Philadelphia convention, the state ratification conventions, and the first Congress. The upshot of Edling’s account is that the Constitutional convention was prompted almost entirely by concerns about international and interstate relations, and the document therefore produced a national government that possessed authority almost entirely limited to these areas. This limited remit was a direct holdover from the Articles, which had envisioned a firm union of states that could act confidently as a single unit on the world stage without giving up the states’ individual independence and self-government at home. That hope, however, had been threatened by several distinct problems with the Articles. Most importantly, the lack of a taxing power limited the United States’ ability to protect its basic interests and take up an equal station on the world stage with European powers. Almost as important were the growing conflicts between states arising over economic tensions, with no means of independent resolution.

The Constitution’s enhanced powers, then, were narrowly aimed at rectifying these and other problems. The establishment of a more autonomous governing structure was a side effect—a necessity for a government empowered to address these problems. It did not signify the establishment of a “polity that gave the central government precedence over the states” but merely ensured that each level of the government was fully capable of successfully carrying out the tasks it was assigned. The Constitution, therefore, “transformed the structure of the American union . . . but it did not transform the fundamental purpose of the union, which remained a political organization designed to manage the relations between the American states, on the one hand, and between the American states and foreign powers, on the other.”

And from the conclusion:

Edling’s account is, for the most part, a convincing and useful corrective to nationalist understandings of the Constitution and its context. It is missing an important element, however: a systematic account of sovereignty and its relationship between the people, states, and the federal government. Much confusion can ensue when the distinction in the founding era between an ultimate “sovereignty” and “government power” is blurred. ...

Edling is almost entirely focused on the division of governmental authority, not ultimate popular sovereignty, and the book does not run into many problems on account of this distinction. But he does occasionally allude to matters that cannot be understood without it. For instance, he says at one point that “The authority of the Constitution rested on popular sovereignty whereas the Articles of Confederation had been an agreement between the states,” but elsewhere he calls the constitution a “plan of union between sovereign republics” and a “compact between states” He also refers to the states voluntarily “circumscribing their sovereignty.” There are not necessarily any contradictions to be had here, but a thorough presentation of the distinction and the use of more precise terminology could help for a more complete picture. On this point, readers will find a more thorough account in Aaron Coleman’s The American Revolution, State Sovereignty, and the American Constitutional Settlement, 1765-1800.

Though one cannot fault a short study for failing to look at every implication, the book is also lacking much by way of assessment of the plausibility of this division of power. Anti-Federalists, of course, did not believe such a balance of federal and state power could reasonably be struck and maintained. Give to the central government the sword, the purse, and the authority to interpret its own limits, and it will eventually use whatever pretense it can find to arrogate to itself supreme authority in all areas. Even in the early republic, the lines between foreign and domestic policy, and especially between intra- and interstate commerce were blurry. They are even more so now. On this point, at least, does subsequent American political development provide the inevitable vindication of the Anti-Federalists?