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Wednesday, September 06, 2017

Founding Federal Decentralization

One of the arguments in my article on federal decentralization is that Founding constitutional theory and practice was interested in federal officials located outside of Washington.  Founding constitutional theory was committed to the principle that the diffusion of powers required pitting faction against faction, and an important part of pitting faction against faction was pitting places against places.  The separation of places, in other words, was a defining feature of constitutional law.  Early federal behaviors and statutes are replete with examples of federal officials operating partially or entirely outside of Washington to generate this separation of places even within the federal government

The Federalist Papers include perhaps the first sustained explanations of political geography in the American context.  Different places would feature different politics because different people moved to and remained in different places, and also because individuals bonded more and cared more about their proximate neighbors rather than their distant colleagues.  State capitals were located near the population centers of state territories to ensure that different places would be empowered in state governments.  The Declaration of Independence references the problems with the British government being only or more accessible to certain places, undermining the ambition to empower different places to influence power.  Indeed, there was even discussion of creating three different presidents, one for each of the three main political regions in the country.

An examination of early federal practice reveals this interest in federal decentralization.  Washington was centrally located to ensure access to federal power by different places.  Washington was a new city, meaning that no entrenched interests in that place could dominate it over the range of other places trying to influence federal power.  Federal officials like customs officials, marshals, prosecutors, and bankers were placed by federal law outside of Washington.  At the highest levels, even the Justices and the Attorney General would operate often outside of Washington.  Constitutional debates at the time focused on interpretations of Article I’s District Clause that would support this federal decentralization.

Posted by David Fontana on September 6, 2017 at 05:13 AM | Permalink

Comments

I can't remember if you mention this, but another early example comes from the history of federal judicial administration. Beginning with the Judiciary Act of 1789, the federal courts were decentralized to allow local federal officials to interpret federal law to a widely spread-out population. As Alison LaCroix, Peter Fish, and Ron Krotoszynski have detailed elsewhere, federal courts were to be the "physical embodiment" of national government in the "highly localized space of the cities, towns and countryside." Alison L. LaCroix, Federalists, Federalism, and Federal Jurisdiction, 30 Law & HIst. Rev. 205, 206 (2012); Ronald J. Krotoszynski, Jr.,The Unitary Executive and the Plural Judiciary: On the Potential Virtues of Decentralized Judicial Power, 89 Notre Dame L. Rev. 1021, 1040-42 (2014).

Posted by: Adam Zimmerman | Sep 6, 2017 6:34:20 AM

Thank you for this great comment! I do talk about that a little bit in the paper and a lot more in the book. It is a great and important early example of this. David

Posted by: David Fontana | Sep 6, 2017 6:39:35 AM

Circuit riding by Supreme Court justices was an important part of the matter addressed in the first comment. Justices' speeches to juries as well as opinions had a special informative function. It also had an opening of political controversy as seen with the impeachment of Justice Chase where his alleged illegitimate partisanship in various cases was an important factor.

Posted by: Joe | Sep 6, 2017 12:11:18 PM

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