Everyone is throwing around the word “federalism” in the legal fight between Al Gore and George Bush about whether the state courts or the U.S. Supreme Court should decide the issue over counting the Florida ballots. What do people mean when they say “federalism”?
As Humpty Dumpty, Al Gore, and George Bush said, “When I use a word it means just what I choose it to mean.” The Federalist, essays first published in 1787 written primarily by Alexander Hamilton, advocated a strong central government as did the short-lived political party of the same name. But the word “federalism,” which first appeared in 1789, according to Merriam-Webster has a more neutral meaning. It is a blanket term describing the division of power and responsibility between states and the federal government. But what has happened to the word is that people with righteous causes not only stand and give speeches in front of a whole lot of flags, they wrap themselves in the protective mantle of federalism. That’s why Al Gore’s legal brief on why the U.S. Supreme Court should stay out of Florida’s business says “principles of federalism counsel strongly against interference by this court. …” And that’s why the Bush side sees the appropriate interpretation here of federalism to mean that the federal court has to straighten out the erring state court. What’s so wonderful about this is that the positions of the two parties are generally reversed on the question of whether the states or the federal government should exercise the most power.
Explainer thanks Frederick Shauer of the John F. Kennedy School of Government at Harvard University, Akhil Reed Amar of Yale Law School, Donald Ritchie of the Senate Historical Office, and Sanford Levinson of the University of Texas School of Law.