May 2010

Following a recent ACS event about the National Labor Relations Act, Professor Anne M. Lofaso talked with ACSblog about the limits of the federal law, which was enacted to encourage collective bargaining and protect the rights of workers. Lofaso, a law professor at the West Virginia University College of Law, said the act has been interpreted by the National Labor Relations Board (NLRB) in way that protects far fewer workers, and that remedies for workers have been curtailed.

Lofaso, who moderated the ACS event, "The Legacy and Future of the National Labor Relations Act," is author of an ACS Issue Brief about some of the NLRB's decisions that have undermined the spirit of the federal law. That Issue Brief is available here. Watch Lofaso's entire interview below or download it as a podcast here. The entire event, which included a keynote address by Deputy Secretary of the Department of Labor Seth Harris, is available here.

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By Alison L. LaCroix, Assistant Professor of Law, The University of Chicago Law School.

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Federalism is frequently regarded as one of the signal American contributions to the modern science of politics. Today, however, it is at once everywhere and nowhere in American constitutional and political discussions. Current debates over issues as diverse as the healthcare bill, the economic stimulus package, abortion, and medical marijuana - not to mention the emergence of the Tea Party, with its cry of "states' rights" - confirm this suspicion. Most Americans routinely employ the word "federal" to refer to a federal case, federal law, the actions of a federal prosecutor, or to the federal government itself. But what exactly does the term "federal" mean, and how did it come to have that meaning?

For decades, historians and constitutional scholars have been engaged in a quest to understand the legal and political worldview on which the United States was founded. Liberalism, republicanism, popular sovereignty, commonwealth - each of these notions has contributed valuable insights into the conceptual and practical framework that underpinned the nation's founding and that continues to inform American political philosophy and public life.

Federalism must be added to this list as a foundational idea of American law and politics. The rise of American federalism in the second half of the eighteenth century should be understood as an ideological development - and, indeed, as one of the most important ideological developments of the period. Thus, it was not simply a matter of political expedience or an institutional cover for economic interests. The core of this new federal ideology was a belief that multiple independent levels of government could legitimately exist within a single polity, and that such an arrangement was not a defect to be lamented but a virtue to be celebrated. By the early national period, federalism had become a theory of multiplicity - overlapping layers of government in which the goal was the overlap itself.

Like judicial review - another "meta-constitutional" value - federalism's origins are typically traced to the drafting of the Constitution, despite the lack of any explicit reference to either concept in the document itself. To be sure, a set of ideas about government that would later be called "federalism" began to coalesce at the Constitutional Convention, conjured into action by the exigencies of a fraying confederation and the combined force of fifty-five creative minds. The product of these imperatives was not only a constitutional doctrine but rather an entire philosophy of government.

Indeed, in the late eighteenth century, the new federal ideology rapidly became identified with the fledgling nation itself. More than a mere doctrine, the belief in multiplicity, overlap, and concurrence became a foundational principle of the American political enterprise. "Federal" and "republic" were the nation's twin attributes, terms so resonant that they were obvious choices for the names of the country's first political parties. From its origins in a disconnected set of pre-Revolutionary arguments about the relative powers of Parliament and the colonial legislatures to regulate colonial affairs, the federal conception of divided authority became necessary to the republic itself.