United States Federalism: Harmony Without Unity

Maxeiner, James R.

doi:10.1007/978-94-007-7398-1_19

James R. Maxeiner⁵

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 28))

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Abstract

American efforts to achieve unification within federalism are many. But unification does not well describe the legal system of the United States. Unification is found only when law is exclusively federal. In most areas of the law there are significant non-uniformities between state and federal law and among laws of states and of municipalities. The government presents the people not with one law, but with a multitude of laws. Yet if law in the United States is not often uniform, it is mostly harmonized. Although there are numerous inconsistencies in law, only rarely are these inconsistencies substantive at a societal level (e.g., death penalty in some states). Usually inconsistencies are matters of detail. These details can, however, be extremely important in individual cases (e.g., death penalty, statutes of limitation). The people are left to sort out the various laws at their peril. The inconveniences and inefficiencies are many.

© 2008, James R. Maxeiner, J.D., Cornell; LL.M., Georgetown; Ph.D. in Law, Ludwig Maximilian University (Munich, Germany). Associate Professor of Law and Associate Director, Center for International and Comparative Law, University of Baltimore School of Law.

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Notes

1.
© 2008, James R. Maxeiner, J.D., Cornell; LL.M., Georgetown; Ph.D. in Law, Ludwig Maximilian University (Munich, Germany). Associate Professor of Law and Associate Director, Center for International and Comparative Law, University of Baltimore School of Law.
2.
Joseph Story, Progress of Jurisprudence, An Address Delivered Before the Members of the Suffolk Bar, at Their Anniversary, at Boston (Sept. 4, 1821), in The Miscellaneous Writings of Joseph Story 198, 213, 224 (William W. Story ed., 1852).
3.
And this American legal writers did from the earliest of publications. See, e.g., American Precedents of Declarations iii–iv (1802) (“the work, though more immediately applicable to the practice of New-England, may be considered as adapted by form, and qualified by authority, to invite the attention and meet the necessities of every State in the Union.”).
4.
Cf., Timothy Walker, Introduction to American Law § 144, at p. 149 (1837).
5.
See, e.g., Sturges v. Crowninshield, 17 U.S. (4 Wheaton) 122 (1819) (arguments of Daggett and Hopkinson for plaintiff). See also Joseph Story, 1 Commentaries on the Constitution of the United States § 444, p. 428 (1833); David P. Currie, The Constitution in the Supreme Court: The First Hundred Years , 1789–1888, at 145–150 (1985).
6.
17 U.S. (4 Wheaton) 122.
7.
Joseph Story, Constitution, supra note 4, § 437, at 422.
8.
1 The Federalist: A Collection of Essays Written in Favour of the New Constitution No. 32 (1788) [emphasis in original].
9.
So called by Ryan, Erin. 2007. Federalism and the tug of war within: Seeking checks and balance in the interjurisdictional gray area. Maryland Law Review 66: 503.
10.
The approach is reminiscent of how common law courts construe statutes in derogation of the common law.
11.
See., e.g., James Sullivan, The History of Land Titles in Massachusetts 352–355 (1801); see generally William W. Crosskey, Politics and the Constitution in the History of the United States (3 vols., 1953, 1980).
12.
6 U.S. (9 Wheaton) 1, 32 (1824). The Court did not accept the argument that whenever Congress “declines to establish a law, it is to be considered a declaration that it is unfit that such a law should exist”.
13.
United States v. Lopez, 514 U.S. 549 (1995).
14.
“This Constitution and the Law of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States; shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
15.
Cf. Joseph Story, 1 Commentaries on the Constitution of the United States § 441, p. 425 (“Are the state laws inoperative only to the extent of the actual conflict; or does the legislation of congress supersede the state legislation, or suspend the legislative power of the states over the subject matter?”).
16.
Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
17.
See English v. General Electric Company, 496 U.S. 72, 79 (1990).
18.
Walker, supra note 3.
19.
Chirac v. Chirac, 15 U.S. (2 Wheaton) 259 (1817).
20.
Sturges v. Crowninshield, 17 U.S. (4 Wheaton) 122 (1819).
21.
1 The Federalist: supra note 7 [emphasis in original].
22.
Sturges v. Crowninshield, 17. U.S. (4 Wheaton) 122 (1819).
23.
City of Philadelphia v. New Jersey, 437 U.S. 617, 628 (1978).
24.
Dean Milk Co. v. City of Madison, 340 U.S. 349, 353 (1951).
25.
See Maxeiner, James R. 2007. Legal certainty: A European alternative to American legal indeterminacy? Tulane Journal of International & Comparative Law 15: 541, 596 (discussing German federalism).
26.
For example, the antitrust laws. See, e.g., Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991).
27.
For example, the securities laws. See, e.g., Rule 10b–5, 17 CFR 240.10b–5.
28.
Some American law professors now see this “competitive federalism,” i.e., non-uniformity of law, as a good thing! See, e.g., Johnson, Bruce and Moin A. Yahya. 2004. The evolution of Sherman act jurisdiction: A roadmap for competitive federalism. University of Pennsylvania Journal of Constitutional Law 7: 403.
29.
See Overby, A. Brooke. 2003. Our new commercial law federalism. Temple Law Review 76: 297, 356.
30.
Ryan, Erin. 2007. Federalism and the tug of war within: Seeking checks and balance in the interjurisdictional gray area. Maryland Law Review 66: 503, 648.
31.
According to the first British census, in 1801 the population of England was 8,331,434. Abstract of the Answers and Returns, Made Pursuant to the Act, Passed in the Forty-First Year of His Majesty King George III, Intituled, ‘An Act for Taking an Account of the Population of Great Britain, and the Increase or Diminution Thereof', Enumeration 4 (1802), available at online historical population reports, http://www.histpop.org/ohpr/servlet/PageBrowser?path=Browse/Census\%20(by\%20date)&active=yes&mno=2&tocstate=expandnew&tocseq=100&display=sections&display=tables&display=pagetitles&pageseq=first-nonblank
32.
See Maxeiner, James R. 2006. Legal indeterminacy made in America: U.S. legal methods and the rule of law. Valparaiso University Law Review 41: 517, 528.
33.
Posner, Richard A. 1983. Statutory interpretation—In the classroom and in the courtroom. The University of Chicago Law Review 800, 800.
34.
Antonin Scalia, A Matter of Interpretation, in A Matter of Interpretation: Federal Courts and the Law 14 (Amy Gutmann ed., 1997).
35.
Mary Ann Glendon, “Comment”, A Matter of Interpretation, supra note 33, at 96.
36.
See Smythe, Donald J. 2007. Commercial law in the cracks of judicial federalism. Catholic University Law Review 56: 451, 459–461.
37.
Barron v. Baltimore, 32 U.S. (7 Pet.) 32 (1833).
38.
Brady vs. Maryland, 373 U.S. 83 (1963). See California Commission on the Fair Administration of Justice, Report and Recommendations on Compliance with the Prosecutorial Duty to Disclose Exculpatory Evidence, available at http://www.ccfaj.org/documents/reports/prosecutorial/official/OFFICIAL\%20REPORT\%20ON\%20BRADY\%20COMPLIANCE.pdf (March 6, 2008) (noting at 2 that “The prosecutor’s Brady duty to disclose exculpatory evidence under the due process clause of the United States constitution is wholly independent of any statutory scheme. It is self-executing and needs no statutory support to be effective”).
39.
Miranda v. Arizona, 384 U.S. 436 (1966).
40.
Id. (“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.”)
41.
See, e.g., Mary Ann Glendon, Abortion and Divorce in Western Law 45 (1987) (“But if the courts unnecessarily decide such controversies on constitutional grounds, these potentially creative and collaborative processes are brought to a halt.”)
42.
To promote uniform interpretation and application of patent and copyright law, in 1982 Congress created a new appellate court to decide all such appeals. It is an unusual creature in a system that prefers generalist to specialist courts.
43.
See, e.g., Buzbee, William W. 2005. Contextual environmental federalism. New York University Environmental Law Journal 14: 108, 110.
44.
Sullivan, supra note 10, at 353.
45.
See Taylor, E. Hunter. 1980. Federalism or uniformity of commercial law. Rutgers-Camden Law Journal 11: 527, 529–530.
46.
Fair Credit Reporting Act, adopted in 1973, 15 U.S.C. § 1681 et seq.
47.
Video Privacy Protection Act, adopted in 1988, 18 U.S.C. § 2710. The Act does not cover DVDs, since they had yet to be commercialized.
48.
Gramm-Leach-Blilely Privacy of Consumer Financial Information, adopted in 1999, 15 U.S.C. § 6801, et seq.
49.
The Standards for Privacy of Individually Identifiable Health Information (“Privacy Rule”), 45 CFR Part 160 and Subparts A and E of Part 164, implementing the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Public Law 104–191.
50.
Printz v. United States, 521 U.S. 898 (1997).
51.
See, e.g., Adler, Jonathan. 2005. Jurisdiction mismatch in environmental federalism. New York University Environmental Law Journal 14: 130 (“The division of authority and responsibility for environmental protection between the federal and state governments lacks any cohesive rationale or justification.”). See also Fischman, Robert L. 2005. Cooperative federalism and natural resources law. New York University Environmental Law Journal 14: 179; Overby, A. Brooke. 2003. Our new commercial law federalism. Temple Law Review 76: 297.
52.
42 U.S.C. §§ 10001–10008.
53.
American Society of Radiologic Technologists, Background Information on State and Federal Licensure Issues, https://www.asrt.org/content/GovernmentRelations/LegislativeGuidebook/LicensureBackgroundInfo.aspx
54.
See Maxeiner, Legal Indeterminacy, supra note 31, at 543.
55.
See, e.g., United States Ombudsman Association, Model Ombudsman Act for State Governments (1997), available at http://www.usombudsman.org/documents/PDF/References/USOA_MODEL_ACT.pdf; Centers for Law and the Public’s Health: A Collaborative at Johns Hopkins and Georgetown Universities, The Model State Emergency Health Powers Act (2001), available at http://www.publichealthlaw.net/Resources/Modellaws.htm
56.
See Leonard A. Jones, “Uniformity of Laws Through National and Interstate Codification”, in Report of the Sixth Annual Meeting of the Virginia State Bar Association 157, 169 (1894), reprinted in American Law Review 28: 547 (1894).
57.
White, James J. 1991. One hundred years of uniform state laws: Ex Proprio Vigore. Michigan Law Review 89: 2096, 2103–05.
58.
See Pope, Herbert. 1919. The federal courts and a uniform law. The Yale Law Journal 28: 647, 651 (proposing entrusting federal courts of appeal with the task of reviewing uniform legislation with a newly established federal court to review their decisions).
59.
Report of the Forty-Sixth Annual Meeting of the American Bar Association 90 (1923); Lewis, William Draper. 1943. The American Law Institute. Journal of Comparative Legislation & International Law 25: 25, 28.
60.
The J.S.D., or S.J.D. (doctorate of juridical science), is not routinely offered or granted to others besides foreign jurists and American academics already holding teaching positions.
61.
See, e.g., Missouri v. Holland, 252 U.S. 416 (1920).
62.
See, e.g., Bush v. Gore, 531 U.S. 98 (2000); West Virginia ex rel. Dyer v. Sims, 341 U.S. 22 (1951).
63.
U.S. Const. art. III, § 1.
64.
Whether other courts are allowed to certify questions varies by state. Other courts that may certify are federal district courts, federal bankruptcy courts and the highest courts of sister states.
65.
Advisory Group to the New York State and Federal Judicial Council, Practice Handbook on Certification of State Law Questions by the United States Court of Appeals for the Second Circuit to the New York State Court of Appeals (2nd ed. 2006), available at http://www.nycourts.gov/ctapps/Cert.pdf. The New York procedure is available only to the federal courts and may be used by them sua sponte only after a case has been fully-briefed and argued. At that point, certification is not a time-saver, but a time waster.
66.
Printz v. United States, 521 U.S. 898 (1997). The Printz decision is at odds with earlier federal practice. The first Congress, in providing for implementation of the Congressional power “[t]o establish a uniform rule of naturalization” art. 1, § 2, cl. 4, provided for state court application of that uniform law. An Act to establish a Uniform Rule of Naturalization of March 26, 1790, Statutes at Large, 1st Cong., 2nd Sess., 103.
67.
539 U.S. 588.
68.
For a listing of the disparate laws as they stood in 1950, see States’ Laws on Race and Color (Pauli Murray, ed., 1950). American race and nationality legislation was of particular interest in Nazi Germany as a precedent for its own racist laws.
69.
163 U.S. 537 (1906).
70.
Scott v. Sanford, 60 U.S. (19 How) 393 (1857).
71.
347 U.S. 483 (1954).
72.
Loving v. Virginia, 388 U.S. 1 (1967) (overturning Pace v. Alabama, 106 U.S. 583 (1883)).
73.
Pub. L. 88–352. See Carrington, Paul D. 1999. Restoring vitality to state and local politics by correcting the excessive independence of the supreme court. Alabama Law Review 50: 397, 440.
74.
Although even here, there was some non-uniformity. In 1950 thirteen states prohibited sales of liquor to Native Americans, five prohibited marriages of Native Americans to white persons, and three provided for separate schools. States Laws on Race and Color, supra note 67, at 19.
75.
For a catalogue and analysis of such legislation, see Heinz Kloß, Das Volksgruppenrecht in den Vereinigten Staaten von Amerika (2 vols., 1940–1942).
76.
262 U.S. 390. Justice Holmes would have upheld the prohibition. See William G. Ross, Forging New Freedoms . Nativism, Education, and the Constitution, 1917–1927 (1994).
77.
As we have seen in considering the homestead exemption in bankruptcy.
78.
Accord, Taylor, E. Hunter. 1980. Federalism or uniformity of commercial law. Rutgers-Camden Law Journal 11: 527, 531 (“In sum, likeness rather than exactness—harmony rather than uniformity—has been the history of the “Uniform” Commercial Code, as will inevitably be the result of any code or model act which must depend for its uniformity on state-by-state enactment.”).
79.
Knapp v. Schweitzer, 357 U.S. 371, 380 (1958) (opinion by Frankfurter, J.).
80.
Taking a similar view, see Pope, Herbert. 1919. The federal courts and a uniform law. The Yale Law Journal 28: 647.
81.
Hannis Taylor, An Inter-State Code Commission (1881), reprinted in Report of the Organization and of the First, Second and Third Annual Meetings of the Alabama State Bar Association 210 (1882).

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James R. Maxeiner

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Eric Stein Collegiate Professor of Law, University of Michigan Law School, Ann Arbor, Michigan, USA
Daniel Halberstam
Hessel E. Yntema Professor of Law, University of Michigan Law School, Ann Arbor, Michigan, USA
Mathias Reimann

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Maxeiner, J.R. (2014). United States Federalism: Harmony Without Unity. In: Halberstam, D., Reimann, M. (eds) Federalism and Legal Unification. Ius Gentium: Comparative Perspectives on Law and Justice, vol 28. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7398-1_19

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DOI: https://doi.org/10.1007/978-94-007-7398-1_19
Published: 28 September 2013
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