Theoretical problems continue to perplex scholars of American federalism. Despite an avalanche of literature, theoretical accounts of federalism are rare. Most work centers on technical debates on U.S. constitutional law, the economic effects of federalism, the role of courts in policing federal boundaries, or some other specific topic. Rarely are these disconnected subjects fused into a unified account, yet having a broader theory is crucial to resolving specific problems. Any theory of federalism must tell us why federalism is valuable, how and where to divide power between national and subnational government, and how to maintain that division over time. Whereas standard accounts of federalism either ignore or downplay one or more of these issues, this dissertation speaks to each of them. It has particular import for the questions of how federalism is supposed to check governmental power and how best to maintain the federal division of power over time. This dissertation outlines the original structure of federalism in the U.S. Constitution and tracing its evolution over time. It argues that the framers, particularly James Madison, advanced a novel theory of federalism, labelled “contestational federalism.” On this view, federalism is analogous to inter-branch separation of powers in that both share two core characteristics: functional differentiation and contestation. Functional differentiation refers to a difference in function between the two separated levels of government for the purpose of promoting effective government. In other words, “local” objects of legislation are best performed by local governments, while “national” objects are best performed by the central government. Functional differentiation provides clear, defensible standards for determining which powers belong to which level of government. Additionally, federalism was designed to be self-sustaining by means of “contestation” or mutual rivalry using constitutional checks and balances between the levels of government. The founders wanted each level of government to be able to sustain itself using mechanisms similar to the ways in which the three branches of the federal government may check each other. Specific checks and balances included the design of the Senate, Electoral College, and electoral system, which the founders believes would safeguard state power. The concept of constitutional contestation was also applied to military power and grafted into the Constitution in the Second Amendment. Originally, the Second Amendment was intended to preserve a military power for the states so that they could check the federal government militarily if necessary. These safeguards, I show, have failed to adequately protect state power, leading to gradual centralization over the course of American history. The original design of the Senate and Electoral College was soon effaced by historical transformations, particularly the rise of political parties, that nullified their usefulness as safeguards of federalism. Likewise, contrary to the expectations of the founders’ and their disciple Alexis de Tocqueville, voters failed to support candidates favorable to local power. As a result, contestational federalism is virtually defunct.This dissertation concludes by discussing possible means by which contestational federalism may be revived. A variety of reforms, most of which would require a constitutional amendment, are possible to minimize the negative influence of political parties on federalism, strengthen the means of contestation, or otherwise buttress federalism. However, these reforms are unlikely to attract widespread support, rendering the prospects of reinvigorating contestational federalism rather unlikely.
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