Over the past decade, both Democratic and Republican Presidents have exercised broad powers, sparking varying levels of agreement, controversy, and legal debate. This raises the question: how did we get here, and what can history teach us about today’s power dynamics between branches of government? To explore this, I’ve invited two colleagues from the University of Chicago—Alison LaCroix, a legal scholar, and Jim Sparrow, a historian. Alison’s work focuses on American federalism and constitutional development, while Jim studies the evolution of state power, especially in wartime. Their broad historical perspectives help illuminate how past conflicts over power shaped our current political landscape. Join us as we dive into the historical roots of today’s governmental dynamics.
How did we get here? That’s one of the big questions that I find myself asking today as I think about the past decade or so of our government. We’ve seen Presidents from both parties exercising broad powers—sometimes doing things I agree with, sometimes doing things I very much disagree with; sometimes provoking major political or legal controversy, and sometimes not.
How much can we learn from our own history? Does the present-day “battle of the branches” have antecedents in the past? What were those past battles about? Who won them? And how did those battles set us on to the path we’re on today?
To try to find out the answers to those questions. I’m here with two of my colleagues at the University of Chicago – Alison LaCroix, the Robert Newton Reid Professor of Law, and Jim Sparrow, an associate professor in history and the college. They both study American history. Alison has published two books – The Ideological Origins of American Federalism and most recently The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms. Jim’s book is Warfare State, and he is completing a sequel: Sovereign Discipline: The American Extraterritorial State in the Atomic Age as well as a third book project: The New Leviathan: Rethinking Sovereignty and Political Agency after Total War.
I’ve brought them here to help me understand the broad sweep of power shifts throughout American history. Let me add that in my experience many expert historians can have something of a narrow focus, because history requires an intense immersion in a lot of details. But Jim and Alison are especially great in their ability to consider the big picture – and therefore to help us understand where we are today and where we’re going.
Have a listen.
WILLIAM BAUDE: How did we get here? That's one of the big questions that I find myself asking today as I think about the past decade or so of our government. We've seen presidents from both parties exercising broad powers, sometimes doing things I agree with, sometimes doing things I very much disagree with, sometimes provoking major political or legal controversy, and sometimes not.
How much can we learn from our own history? Does the present-day battle of the branches have antecedents in the past? What were those past battles about? Who won them? And how did those battles set us onto the path we're on today?
To try to find out the answers to those questions, I'm here with two of my colleagues, Alison LaCroix, a Robert Newton Reid Professor of Law, and Jim Sparrow, an Associate Professor in History at the college. They both study American history. Alison has published two books, The Ideological Origins of American Federalism, and most recently, The Interbellum Constitution, Union, Commerce, and Slavery in the Age of Federalisms.
Jim's book is Warfare State, and he is completing a sequel, Sovereign Discipline, The American Extraterritorial State in the Atomic Age, as well as the third book project, The New Leviathan, Rethinking Sovereignty and Political Agency After Total War.
I've brought them here to help me understand the broad sweep of power shifts throughout American history. Let me add that in my experience, many expert historians can have something of a narrow focus, because history requires an intense immersion in a lot of details. But Jim and Alison are especially great in their ability to consider the big picture, and therefore to help us understand where we are today and where we're going. Have a listen.
Alison, Jim, thank you for joining me. So as I look around at everything that's been happening in government and in society and the conflicts we're seeing about who's in control of the country and what direction the country is going to go, one question people ask me, and then I ask myself is, how did we get here? And have things like this ever happened before?
People look around and see the conflicts between the executive branch and Congress or the states or the nature of the conflicts in the government. Are these unprecedented, just things we've never really confronted before? Or are there episodes from our history that can tell us something-- maybe they're similar, maybe they're different-- about where we've been, and maybe tell us something about where we are now?
So I'm hoping that the two of you, since you have a lot more expertise in American history than I do, can give us a little bit of guidance about that. And so maybe Alison, could I start with you and just ask, have things like this, however want to understand "this," happened before? And what were they like?
ALISON LACROIX: Yes. Well, things generally like this have happened before. And then there's an asterisk, of course, for, what does generally like this mean, and what is the "this?" So I guess relevant to our topic, I think a lot of what has happened today that we see going on in political culture and political debates reminds me of the early 19th century, the period between the founding and the Civil War, which I think for a lot of people is a little bit of a unknown territory in US history, and especially legal history.
But it's a period where we see lots and lots of debates about the states versus the federal government, and then the different branches of the federal government, the power of the federal courts. So to take just one example that I think is really apt, and it's something I've written about, which is in the 1850s, Congress passed a renewed Fugitive Slave Act. And so the federal government was passing legislation that said, look, the Constitution obliges even free states to return or have rendition processes for alleged fugitives and enslaved people.
And there was resistance from a number of states, including Wisconsin, in a case that went all the way to the Supreme Court. And it challenged, first of all, I think just our understanding of that period, because this was a states' rights argument being made by a state that was pro-liberty and pro-emancipation in many ways, and anti-slavery, and saying things like, the enslavers have captured control of the central government, and so Wisconsin will fight back.
So states' rights rhetoric maybe not on the side that we tend to associate it with for the 20th century where I think the mode that we tend to think of is states fighting integration and Brown versus Board of Education. So there's that instance, which I think is interesting and it's surprising. It's always good to look for surprises in history.
And then I think also throughout that whole period, we have debates about the role of the Supreme Court and the federal courts generally. What are they supposed to be doing? What are the limits of their power? Are they political? So lots of those things come up in that period from roughly 1800 to 1861.
WILLIAM BAUDE: Are there any examples about the debates about the powers of the Supreme Court that stand that are vivid to you?
ALISON LACROIX: Yes, there are a few. And some of them are fun in a technical lawyer sense, and others are interesting for nonspecialists as well. So I think one of them-- and this is one that has been somewhat in political reporting and commentary-- involves the two cases, actually, that went to the Supreme Court in the early 1830s concerning the sovereignty of the Cherokee Nation.
Many Indigenous nations, especially in the Southeast, were in the position of negotiating with the federal government, as they had done for decades, and signing treaties. And the Jackson administration called upon Congress, and the Jacksonians in Congress passed what was called the Indian Removal Act.
The Cherokee Nation launched a litigation effort in the Supreme Court, hired some of the best lawyers of the day. And one case, Cherokee Nation versus Georgia, the Court said, well, you have an interesting claim here, but we're not sure we have jurisdiction, which I think in modern cases sometimes would be reported as a technicality. But there were signals from the Supreme Court that they were open to the claims the Cherokee Nation was making, that it was sovereign, and that the state of Georgia couldn't regulate it.
Then the second case, the Court heard Worcester versus Georgia. This is the one that we sometimes hear about as supposedly Andrew Jackson saying, the Supreme Court has made its decision. Let them enforce it. He actually didn't say that.
And so there that's a similarity, but then quite different in some ways. Jackson wasn't a party in the case. The Supreme Court, for jurisdictional statutory reasons, couldn't actually carry out its own order.
And yet, it was a victory for the Cherokee Nation that they weren't able to really claim because of acts of Congress, because of lack of will of the executive, who was actually behind the scenes and encouraging Georgia to take the Cherokees' land. And so it's really interesting also in the apocrypha of history that we hear these things and they're not always true, but that there have been these standoffs, both state to federal, state to Supreme Court, and then president to Supreme Court before.
WILLIAM BAUDE: And I guess generally speaking-- there are lots of details in there I want to come back to, and I hope we'll come back to in this conversation. But generally speaking, I mean, how did they end, you know? Do we think, well, there was a conflict between the states and the federal government, and was the lesson that the federal government always wins? Is the conflict between the president and the Supreme Court and the lesson was the president always wins? Or maybe it's too hard to put a bow on it, but--
ALISON LACROIX: Well, I think one narrative that I think is incomplete and probably wrong is all of those things can be lined up and put under this heading of, and therefore, the Civil War came, as though that in 1830, the Civil War 30 years later was foreseeable, which of course, it wasn't. So I think one of the interesting things to me is that the Supreme Court often did not win, even in the immediate term. So Worcester versus Georgia, they don't win. The state of Georgia ignores the order, basically.
And then lower court judges, but sometimes Supreme Court judges who were, as it was called, riding circuits, sitting as trial court judges-- so I think of this as Justice Sotomayor spends part of the time every year sitting as a federal trial court judge in New York. What would that be like?
So you sometimes had Supreme Court justices doing that and saying things that were quite pro-federal government, and then the states or the state parties sort of ignoring them. So I think on the long sweep, we could say, oh, it's the growth of nationalism, and the Civil War enshrines the idea of the nation. But I think the reality is a lot more complicated and the pervasiveness of the states' rights arguments, even up to the Civil War like with Wisconsin in the 1850s, to me, is striking.
I'll say one thing about the Court in the Wisconsin case when they heard it, which was the Supreme Court unanimously, in that case, in 1859, said, Wisconsin cannot defy federal law in this way. It's illegitimate for it to do that. And I think that was a stronger position than the Court had taken in early decades. So the Court was gaining power, but slowly.
WILLIAM BAUDE: As an aside, I can't help but say, I think, Chief Justice Rehnquist, my memory is, maybe when he was the Chief Justice of the Supreme Court, he once did sit as a trial court judge because he learned he was allowed to, and thought that would be a good idea.
And apparently, he got reversed by the United States Court of Appeals for the Fourth Circuit, and so he never did it again. And no Supreme Court justice has ever done it again, because they're supposed to be the Supreme Court, and so it sort of complicates our minds to imagine them sitting in any other way. So I don't know what to make of that either.
So just one last question on this thought, is so the kind of-- I confess, I am one of these people who has the, but it was all leading up to the Civil War instinct, even though I know from reading your work, I'm not supposed to think that. When I hear you talk about the fugitive slave crisis or the conflicts of the Court, I can't help but think, well, indeed-- and ultimately, I guess the country couldn't keep it together, right? It ended in the Civil War.
So even if they didn't know that their conflicts were ultimately leading to the Civil War of our history, didn't they? Or was the Civil War-- should I think of that as inevitable? That's the thing that had to emerge out of this, or is that the wrong way to think about it?
ALISON LACROIX: Well, as a historian, I'm required to say that nothing is inevitable.
WILLIAM BAUDE: [LAUGHS]
ALISON LACROIX: I'm going to look to Jim on this. [LAUGHS] But there's a wonderful article by the historian Arthur Bestor from, I think, 1964, in The American Historical Review. And Bestor-- the title is "The American Civil War as a Constitutional Crisis." And Bestor has this metaphor. It's very water-based, all the metaphors he used, rivers and streams.
But Bestor says, the Constitution was the channel in the antebellum period and up to the Civil War through which all these disparate issues flowed. So whether you're talking about slavery as a political, moral, economic issue, or westward expansion, or the status of Indigenous nations, or women, or just nationhood itself, people at the time viewed things through the framework of the Constitution, which is not inevitability, but it does suggest the political parties, for instance, couldn't contain the crisis.
Although of course, we might want to say, was that a crisis that should have been contained? I think there's an older school of historiography that said, oh, what a shame that the political parties couldn't keep compromising. But the compromises were things that brought the Fugitive Slave Act. So I think the system couldn't contain these issues, and therefore the Civil War. But that's different, I would say, from inevitability.
WILLIAM BAUDE: OK. Fair enough. Fair enough. And Jim, what do you think? So from the periods of history you've studied, are there things in the past that remind you of what's going on now that we should learn from?
ALISON LACROIX: Yeah, there are always precedents in history, but that's really a very different question from asking whether or not we're in a new place. I think we are in a new place.
And you think of the Worcester case. That has always been cited by historians, even when it's apocryphal, as the exception that proves the rule that Jackson went so far as to defy the Supreme Court. And significantly, by not enforcing the rule of law.
And what we're talking about now has more to do with very positive assertions of executive authority that are rooted really in a distinctly 20th century tradition of presidential power and of federal power. I think it's worth distinguishing between the centralization of power in the national government and the concentration of national power in the executive branch.
And I see those two becoming irreversibly intertwined as a result of a series of episodic bursts of reform and war that then produced a kind of secular pattern of state building that was constantly centered in forms of administration that the executive branch was best positioned to control in s structural sense, not in a normative sense.
WILLIAM BAUDE: Right. So power's flowing up. That's, I guess, the wrong-- it's not water that flows up, but power's flowing up, and then also flowing into the center, into the executive branch.
JAMES T. SPARROW: And I would add that I really think that that development was the child of the Civil War. And it's really the breaking of the old Constitution, the new birth of-- or the second founding of the United States in the Civil War, in the Civil War amendments, in the form of the federal government that was built to prosecute the war by the Union, and then in the form of the settlement that came out of the Civil War. All of those things created structures of power that over time would concentrate power in the federal government and in the presidency.
However, I would not say that was inevitable. It was simply that periods of opportunities for reform and periods of war created favorable conditions for executive activism, which is a different thing. And it's the reason why it took from the 1860s until the 1910s for a president to really consolidate presidential power. It started a little bit early with Teddy Roosevelt, but he was quite limited by Congress.
WILLIAM BAUDE: Yeah. So Jim, you mentioned changes that have happened after the Civil War that set us on the beginning of the path to where we're coming today. And I guess I'm wondering more specifically, what are those? What do you have in mind? Obviously, there's the elimination of slavery, the creation of new constitutional amendments. But what else is it that happens that kind of starts to move power?
JAMES T. SPARROW: Yeah. Well, the period after the Civil War leading up to World War I is a period of national consolidation and westward settlement. The federal government actually, it does grow, but it doesn't become massive as you might expect, in part because Reconstruction was abandoned. The conclusion of that election resulted in the withdrawal of the remaining army forces from the South. And so what could have been a rather expansive government project was abandoned.
And at the same time, there's an embrace of economic strategies of commercial development and trade that favored what's called a laissez faire economic policy. It wasn't as laissez as one would like to think. In fact, there was plenty of state capacity involved in regulation. But it was oriented toward unleashing the power of markets domestically. The railroads built up the national market, and also internationally in this first age of globalization.
That culminated in an embrace of empire with the war with Spain in 1898. And from that period onward, the United States had to reconcile its status as one of the great economic powers of the world with its latecomer status to geopolitics. And it wasn't really until the First World War, and finally consolidated in the Second World War, that the US embraced its status as a superpower.
And so I would argue that sort of that first embracing empire and then eventually entering great power politics abortively in World War I and then permanently from World War II on that transformed the federal government into the leviathan that we think of today. And that was a halting, contested process.
WILLIAM BAUDE: Interesting. So that also sounds like, as we were talking about power flowing upward toward the national government, flowing inward toward the president, toward one person. And I guess that suggests it's also flowing to the United States as a whole. The United States becomes more powerful. Then also, we have to think about the nature of the power in the United States. Is that--
JAMES T. SPARROW: Yeah. And it's important to realize this is a scalar process. So we tend to focus on presidents and the federal government, which is my own area of expertise. But the process of state building is actually a scalar one that really begins with municipal reform in the late 19th century. And then experiments in municipal reform are embraced by state reformers in states like Wisconsin and Illinois in the Progressive Era. And then eventually in the New Deal and onward, the federal government really consolidates that state building and national agencies.
And throughout this whole period of the 20th century when the federal government is exploding, the states are exploding too. There's a book by Jon Teaford, The Rise of the States, that's about how state government also grew incredibly powerful.
And so when you think of today, when people are responding to state power, they're often responding to municipal power like, say, police forces. But those police forces are bolstered by state resources and federal resources that are quite considerable. So it's really the integration of the different levels of federalism as much as the consolidation of power in the federal government that explains the force of government that the executive's able to bring to bear on any given problem.
WILLIAM BAUDE: Mm-hmm. And so I guess two pieces we try to disentangle this-- all these moving parts, right? So one is as all these different parts of the government are getting more powerful and doing more things, is it still the case that the federal executive branch is getting more and more powerful, that it's becoming-- getting more relative power, or not really?
JAMES T. SPARROW: This is where we can disagree. And I'm sure a law professor might have a different view from a political historian. I would argue that what's happening is that the federal government becomes more supreme because it enables power sharing with the private sector, with the states, and with the municipalities, so long as it has unquestioned authority in areas of its own preserve, notably within foreign policy.
So the imperial presidency becomes a shorthand for this, although, again, it's scalar. The cooperation of the FBI with state police departments from the 1920s onward and from the '30s onward in the name of national security is a great example of that. It's really the states and the big municipal police forces that provide the state capacity that the FBI is able to act on for much of its history.
WILLIAM BAUDE: So you're sort of suggesting the federal government is becoming more powerful, supreme at some things, and then a power clearinghouse that other things, that--
JAMES T. SPARROW: Yeah, it's like a circuit board, perhaps.
WILLIAM BAUDE: [LAUGHS] Combining the circuit board with the water metaphor I think is a dangerous combination, but maybe that's-- but maybe that's a sign. And then I guess another question is, how smooth or how conflicted is that process? You can imagine one story that says, we've been on a kind of trajectory through these wars of building a global superpower, and that means building a lot of power, and the private sector wants the federal government to do things. The federal government wants the private sector to do things, and everybody is kind of, in some general sense, moving in the same direction.
Of course, we know in the 19th century, there are times when people are literally marching in opposite directions at one another. Is that-- what's a way to characterize the process? Is that a lot of conflict, a lot of cooperation? If it's a mix, how does it mix?
JAMES T. SPARROW: Well, there's always a lot of conflict in American politics. I think what's striking is that up until the war on terror, the articulation of executive power has occurred with much more pushback by the other branches and by the states than is the case today. And that's in part because the relationships between those branches were expected to be balanced against each other, and there were lots of veto points and points of opposition.
It's really striking how since the war on terror, both the Congress and the Supreme Court and many of the states have seemed unwilling to exercise their prerogatives vis-a-vis the executive. But prior to that point, every period of the consolidation of executive power-- and I'd be happy to go through them-- in the 20th century has involved-- entailed first cooperation between the president and the Congress in the context of an emergency, then extraordinary latitude taken by aggressive presidents.
And then congressional pushback resulting in pretty significant limitation on the power of the president, and then the articulation of congressional powers within the executive, say, in the form of independent commissions, independent counsels, things like that. And that's really-- the pattern every single time has been Congress has pushed back quite hard and asserted new forms of legislative involvement in national affairs.
WILLIAM BAUDE: Alison, do you have the same sort of assessment of where we are today? Are we in a place where the executive branch is not getting as much pushback from other branches as we used to see throughout history, or not?
ALISON LACROIX: Yeah, it's a great question. When we think of how the Constitution was designed and what the founders in the first founding were actually up to and trying to figure out, one of the things that I always like to emphasize in constitutional law is when we think about separation of powers, we have these phrases that for many people are kind of old and not helpful, but separation of powers, that phrase, and then checks and balances. And again, they all feel kind of like middle school civics or something.
But one thing that I think historically has been true and important to emphasize, and in the design from the beginning, is the checking and balancing part. So the analogy I sometimes use is three kids in the back seat of a car, which I can speak from personal experience on. And if we think about it as, we don't know where the lines between the three are, but we know there are lines. So that's James Madison's view of the Constitution, his own Constitution that he was so important in drafting.
And we don't where the lines are between the legislative branch, the executive branch, and the judicial branch, but they exist. And what do we do to figure out where the lines are? The system relies on the branches to, as I think of it, throw the elbow when one of the branches crosses the line in the back seat of the car and just starts slumping over and coming into the space.
And so this was Madison's theory without the car part. But he said, look, we can rely upon the branches to jealously guard their own powers, and that friction will help us delineate the lines. And every branch will do that, and that will help keep the others in check. So it's also very kind of Newtonian physics of bodies in motion, and so forth.
And I think that that description-- which is helpful, because it suggests it's not separation. They're not each hermetically sealed. It isn't like the legislature just legislates, and we all know what that means, and judging is different, and we'll just know what those mean. It suggests an evolutionary over time process by which the branches will, again, have the incentive to guard their own domain.
When we get to a system where that's not happening, which I think is where we are today, then you really have to say the whole system might indeed break down, because now we don't have sharp lines, because those were always a little bit ephemeral, and it was hard to know just what those sharp lines were. And so if the branches and institutions are not guarding and acting in an appropriately adversarial way in the name of their own institution, then the power just amalgamates and flows, and then there's no checking going on, and certainly no balancing.
So I do think that's relatively new. And in some of the examples that Jim mentioned, I mean, if we think about even the 20th century or the 19th century, Congress sometimes was of the same party as the president in those cases. But they also at some points thought of themselves as Congress, as doing legislation and having a different project, and indeed, factions within Congress that then had to work and bargain amongst themselves. And so even in the eras like the Jacksonian period or Thomas Jefferson's administration when they had Congress with them, Congress and certainly the courts, I think, acted in a more branch-- again, jealous way that actually had these overall systemic benefits.
WILLIAM BAUDE: So now I like this metaphor a lot. And I guess you could imagine that how those battles play out today is still shaped by all the history that's come before. You could imagine that if people have gotten used to the idea that the person in the middle of the car takes up most of the space, that those become-- those lines start to seem natural. People don't push back as much against that. Or you could imagine that if over time one person has just learned how to be a little stronger, learned how to throw elbows that really hurt, maybe then over time they start to accumulate more power than the others.
ALISON LACROIX: Yes. And I also think another part of the story is that the judiciary, the federal courts, especially the Supreme Court, are both a branch, and by system and by their own lawmaking and doctrine-- not lawmaking, but adjudication-- they are the umpire, to use a phrase that Chief Justice Roberts has used, but the early 19th century Court used, as well as state courts.
So there were arguments in the early 19th century about, does the system overall have an umpire? Before baseball, interestingly. And there are state court judges who just say, our system is federal. It's messy. It's filled with these conflicts. There's no overriding umpire.
But in the system since, of course, the Supreme Court, again, is both a branch of the federal government, which I think states often especially will point out if the Supreme Court overturns a state law or a state judicial decision, but it's also the overseeing kind of umpire of the whole system. And I think sometimes it says it's doing one thing. It says it's being an umpire, but really, it's acting as a branch. It, of course, is an institution that can arrogate power to itself.
And so I think that's another piece of the story here, which is one of the people in the back seat is not only in the back seat. They're not the driver, but they have some responsibility for the overall configuration. And I think we're seeing now a moment where our Supreme Court sometimes says, we have this very strictly defined judicial role, and we do this, but not that.
And then there are other times where they seem to pull back from the notion that those definitions are strict, and then we get very different kinds of reasoning, and the methodologies they use are different. So I think they will opportunistically say they're doing one or the other, but they really have to be doing both.
WILLIAM BAUDE: So I guess one way to think about the moments that brought us here, if we don't talk about inevitability, maybe we could still talk about inflection points, points when we were on one kind of track, and then at least in hindsight we can say, this is a moment where things took a bit of a turn or where there seems to have been a kind of a change in change. Have there been some of those inflection points or moments that stand out as kind of things that put us here? You mentioned the war on terror. Is that one? I don't what to think of--
JAMES T. SPARROW: Yeah, there have been several. And again, I think you want to distinguish between the secular trend and then these inflection points. So you look at the growth of the presidential authority in the Wilson administration. He comes in with, if not a mandate, then tremendous popular support. Passes a string of important pieces of legislation.
But the issue of neutrality trips him up so that by the time Wilson is then advocating for war, he's alienated a number of key allies in the Congress. And then his conduct of the war, particularly diplomacy, and especially regarding the post-war settlement, the Treaty of Versailles and the League of Nations, completely alienates the Republican Party and a number of progressives on whom he'd relied in the Far West.
And as a result of that, his second term-- really, Wilson is blocked in a lot of his reform ambitions, although he's able to make use of wartime powers. And then of course, the League is famously torpedoed.
Roosevelt likewise, at the peak of his power after the 1936 election, in a fit of frustration seeks to pack the Court, famously. And that's really the-- that's where Roosevelt hits the wall. And the conservative coalition of Southern Democrats and Republicans forms that thwarts not just the New Deal, but the Fair Deal, and actually plays a major role throughout the Cold War in holding back civil rights legislation and a number of other progressive issues.
Nixon famously hits a wall as well, and it happens before Watergate. But the '72 election was a very successful election for Nixon, but he had gone beyond even Lyndon Johnson's imperial ambitions for the presidency and abuses of power. I mean, the use of, say, the IRS to investigate political enemies, that was something that Johnson had indulged, and Nixon took it even further.
And today's view of the unitary executive really comes from the experience of Nixon reaching a limit, and then of course, the Congress pushing back very hard with a series of laws and precedents, going well beyond the confrontation over Watergate. But FISA and FOIA and the investigations of the Church Committee, et cetera. So these are key inflection points where presidents expand their power dramatically under the auspices of war, and then that produces very powerful congressional pushback.
WILLIAM BAUDE: So now we're living through maybe a moment of press for expansion, and we haven't seen the pushback. And I guess famous historian Yogi Berra once said, predictions are hard, especially about the future. But what do you see as the range of possibilities coming?
JAMES T. SPARROW: That's a disturbing question. [LAUGHS] The possibilities are quite open-ended, as they always are in history. I'm concerned that we haven't really seen serious pushback by the Supreme Court or the Congress really since the war on terror. So that's going back to 2001.
And so I suspect that the states will end up being the laboratories, once again of democracy, where states will try to innovate and recover their authority under federalism and try to shape the rights of citizens and circumscribe the power of the federal government in ways that fit with this much longer history that, of course, goes back to the period Alison began with in the antebellum period, but has been constantly transforming. So I think the states will end up being the key arena of institutional innovation.
WILLIAM BAUDE: Alison, what do you think?
ALISON LACROIX: Yeah, I think of the states as well. I mean, there's an interesting way that I alluded to before in which people today, I think, seem surprised when-- I'll just call them blue states-- when blue states are talking about states' rights. So the number of articles that I've seen about this or questions I've gotten where there's a sense of surprise about this.
And this happened a little bit in the first Trump administration with the sanctuary cities' efforts by the administration and then the resistance from some cities and counties and states. And then we saw that flip under the Biden administration, as we always do, but now we're sort of back.
And so there's, again, this pervasive question of, well, can blue states, can liberals and progressives really believe in states' rights? To which the response I give is, well, number 1, yes, because there's this 19th century history. So if you think, oh, states' rights have been used in this really bad way in the sense of Southern governors standing in the schoolhouse door to block Brown versus Board of Education, that's the most recent incarnation in the kind of collective memory.
But there's a much longer set of historical precedents that don't suggest states' rights are always correct, but that suggest that is an available, and actually recognized over and over by the Supreme Court, mode of argument. And not just mode of argument, but principle.
So the most famous cases about federalism and state autonomy, to get away from the states' rights language, which is so loaded, come in the 1970s, '80s, and '90s, and it's the Rehnquist Court. And many of those have a conservative flair to them, stopping the expansion of the federal government and saying, look, we need to put the authority with the states. The states always have this ability to walk away, and Congress can't coerce them. We saw that even as recently as 2012 in the Affordable Care Act case from the Supreme Court.
So that's recent, but that was sort of overlaid with this conservative states' rights idea, which I think is a product of the 20th century and how we think about the federal government is like the New Deal FDR government, and the states are resisting. But then tinged with those states in many cases being anti-civil rights and outright segregationist.
So it's available-- it's actually law. It's law in the 19th and 20th centuries as well, these notions about the limits of the federal government's power. We don't live in a unitary system. We never have. And there's an irony that those are Republican, kind of conservative views from the late 20th century. But I don't think that means it's only instrumental if, say, blue states or the left use them. I think they are available there, and they are actually principles of our federal republic.
WILLIAM BAUDE: I am struck by how short a lot of people's memories seem to be, or short but long in that-- so for many people, they think of the Civil Rights era as the moment of federalism. Now plus maybe the Civil War. Those seem similar.
But in our professional memories, George W. Bush was president, and Massachusetts sued him about not doing enough to regulate carbon. And I remember some people thinking that was great, some thinking that was terrible. And then President Obama was president, and Texas sued him. And some people thought that was great, and some thought that was terrible, but often different people. And then Donald Trump was president and the state of Hawaii was suing him, and people had the same view. And then President Biden was again sued by Texas. And again, you see things over and over again.
And it seems like different sets of states for different presidents are there and eager to carry this banner. Can they really do anything, though? I mean, if you think of some of these historical examples-- Wisconsin fought the Fugitive Slave laws, but in the end, the Supreme Court told them the Fugitive Slave laws are constitutional. Back off. States fought the Civil War, but in the end, the national government won. Do we see-- is there a realistic possibility, or are we saying that at this point, the pushback is the states, another way of saying at this point, there isn't going to be a lot of pushback?
ALISON LACROIX: I think the state's pushback really does matter, and has mattered historically. So the Wisconsin example is a really interesting one in the 1850s, because it's the federal government's heavy handedness on the state of Wisconsin that moves the needle for many, many kind of white moderates in Wisconsin who don't feel personally invested in the slavery question, but prompts them to vote for Lincoln in 1860 because they feel like, OK, I might be indifferent to the plight of enslaved people. That seems very far away, and that's a different state's sets of laws.
But as Ulysses S. Grant puts it in his personal memoirs written 20 years later, he says, the western and northern states objected to being made the police of the southern states. So that actually galvanized the states in the Upper Midwest and a lot of people who were not themselves committed abolitionists to say, yeah, this is actually worth having a war over, and this affects me.
So I actually think one can say-- and I say this in my most recent book-- Wisconsin went to war in the name of states' rights, as did South Carolina when we're talking about the Civil War. And it was the right of the state of Wisconsin to be uncorrupted by the laws of the slave-holding states coming into the territory, grabbing people, kidnapping them.
And so I think that's very powerful, and that's different from just a kind of maybe important, but more symbolic resistance. That was actually an ideology that framed how people were thinking about what became the Civil War.
JAMES T. SPARROW: You know, I think that first of all, the states include the localities. And so I think municipalities are very important areas for innovation as well. The blue states don't have a monopoly on innovation, or in response or resistance to the federal government.
And you go back to Nixon with the new federalism. It's really been conservatives who have been more interested in cultivating state independence until fairly recently, and experimenting with fiscal devices. Welfare reform was heavily state-level experimentation in different states.
So I think it's easy for us to think of states as sort of state response to executive power as being a sort of blue state issue. But in fact, I think it's a federalism issue in which what pops up on our radar-- is it reproductive rights? Well, it's innovations by the state of Texas, or Florida has innovated in certain ways. Now, they may agree with the current president on certain policies, but not on everything.
And when you think about how things like tariffs differentially affect the economic and political geography of the United States, there are places that are firmly red in the Far West and the Midwest that would be affected by restrictions on trade. They may be red, but they still may want some protection or some coverage. I mean, tariffs, that's a real problem because that's international trade. But I think actually that instead of thinking of the states solely, thinking of how county-level governance is actually very important in implementing policing and implementing policy of many different kinds.
And so I think that as I said at the beginning, this is a scalar process of building up state capacity. What's really significant and suggests that it will be harder for states or even localities to push back, is the push to integrate federal power through, for example, the centralization of databases and the use of communications and records keeping under Homeland Security, the federalization of surveillance and of policing. Those things make it seem harder to imagine how federalism can sustain its sort of variegated balancing act.
WILLIAM BAUDE: So this has been really informative, and I appreciate all your expertise. And I guess the last question I kind of wanted to wrap up with is about what sometimes at Chicago I hear people call the research frontier, the set of things-- we have a set of things we know, and then part of what we're all doing here is trying to learn more things, to push out even further our understanding of all these questions.
So I guess in these big questions of American history and the balance of power is, what do you think is the research frontier? What are the next things we haven't yet figured out or haven't yet come to understand and are working to come to understand, or you hope we're working to come to understand?
JAMES T. SPARROW: Observers of foreign relations today have been surprised by the ease with which the consensus on the North Atlantic commitments of the Cold War have fallen apart or have been abandoned after 70 years of really expensive and intensive commitments overseas in Europe, but elsewhere. And the speed with which these have been abandoned raises the question of, well, was this a giant that stood on feet of clay? And yet, it stood for 70 years. So the research I'm doing on these international commitments tries to ask, what was the foundation for those international commitments?
Historians have traditionally argued that there was a consensus, a Cold War consensus that stopped at the water's edge. But when you look at the water's edge and discussions of foreign policy, there was no consensus. There was actually intense partisan polarization. All of the targets of the early Cold War were the faces of those international commitments like Harry Dexter White, Alger Hiss, the Amerasia crowd.
And there's a reason for that, because there was an intense contestation of the legitimacy of those international commitments. And so I think what we need to understand more is how these very large, consequential, expensive commitments that got us into wars were sustained politically over a long period of time, and also how that fostered a building backlash against those commitments.
WILLIAM BAUDE: Alison, what about you?
ALISON LACROIX: Well, something that I'm working on that I think is motivated in part by this kind of question is there's a lot of interest from the Supreme Court and in political conversation and legal conversation generally in reconstruction right now. I mean, we've had the Supreme Court in one very big case and in a couple of other almost as big cases in the last term or two construe parts of the 14th Amendment. In one of them, Trump versus Anderson, a clause they hadn't really touched before. And there's just this sort of pervasiveness of discussion about reconstruction in other cases as well from the Court, and a sense-- I mean, I think we could also include questions about monuments and the post-Civil War memory projects that I think are still going on in arguments.
But I think we don't actually really understand reconstruction, despite the enormous amount of really tremendous legal and historical scholarship that's been done, because I think lawyers often come to it and say, well, this is a new set of constitutional amendments. That's really exciting, of course, both because of what the amendments did, but also because there hadn't been amendments for decades.
But that can kind of obscure what came before and how we got to reconstruction. So the historian Eric Foner calls it the second founding, which I think is apt, but it didn't come out of nowhere. And in fact, there was this terrible war before it. So I think we need to understand reconstruction in its own constitutional terms, especially structural constitutional terms, because we can distinguish a bit, even though these are overlapping categories, between constitutional structure and rights.
But the things that the Civil War and Reconstruction did to the federal state balance or conflicts between them, municipalities, federal power in different ways, I think there's still some room to do some historical work on that. And there's a lot of historical work that's decades and decades old, and some of it, frankly, bears the taint of lost cause kind of stories.
So I think we need to understand reconstruction a whole lot better. Again, building on-- standing on the shoulders of some tremendous work that historians and legal scholars have been doing.
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WILLIAM BAUDE: Thank you both for joining me.
ALISON LACROIX: Thank you.
WILLIAM BAUDE: The Battle of the Branches series explores how traditional norms surrounding executive authority, legislative oversight, and judicial intervention are increasingly being tested and reshaping our democracy. Grounded in UChicago's values of free inquiry and expression and driven by rigorous interdisciplinary research, the project brings together leading scholars to explore these questions with depth and nuance. We hope you'll join us this summer.