Alison LaCroix on How History Rhymes at the Supreme Court

Episode Summary

Executive Summary: The episode traces how the Supreme Court’s 2018 Murphy v. NCAA decision on sports betting grew out of centuries of conflict over federalism. Through legal historian Allison LaCroix, it explains Madison’s failed "federal negative," the Constitution’s written allocation of powers, antebellum battles over state sovereignty, and how modern anti-commandeering doctrine reshaped the balance between Congress and states.

Main Topics: Murphy v. NCAA and sports betting (Priority: 5/5): The conversation uses the sports-betting case as the modern example of a long constitutional struggle over whether Congress can stop states from legalizing activity. Federalism and the anti-commandeering doctrine (Priority: 5/5): Alito’s reasoning in Murphy is framed as commandeering: Congress cannot directly order state legislatures what to do or not do, even if the effect resembles preemption. Madison’s 'federal negative' (Priority: 5/5): James Madison proposed giving Congress (via the Senate) veto power over state laws, but the idea lost to a system relying on courts and supremacy rather than legislative veto. Historical roots in the British Empire and early republic (Priority: 4/5): LaCroix argues the founders were not starting from scratch; they inherited layered government models from the empire and were explicitly trying to avoid both Britain and France. Antebellum conflicts over slavery and sovereignty (Priority: 4/5): Cases involving persons of color, the Fugitive Slave Act, Joshua Glover, and Wisconsin’s resistance show that states’ rights arguments were used by both pro-slavery and anti-slavery states. The shifting meaning of federalism over time (Priority: 4/5): Federalism is presented as a moving target: the early Supreme Court was often more nationalistic than modern viewers expect, while the 1980s-90s revived strong state-protection doctrines.

Key Arguments: Murphy v. NCAA rests on the anti-commandeering principle: Congress may preempt state laws through generally applicable federal statutes, but cannot directly instruct states what they may not do. The Constitution’s design was a compromise: enumerate federal powers, leave residual powers to states and people, and rely on courts as the umpire instead of a congressional veto over state laws. Madison believed a federal veto would harmonize state laws and prevent parochial state behavior, but Jefferson and others thought it would overreach and be unnecessary because courts could later resolve disputes. Early American federalism was shaped by colonial and imperial experience, so the founders were already accustomed to multiple layers of government rather than a blank-slate system. The antebellum era shows that state sovereignty arguments were not owned by one region; Northern states like Wisconsin also invoked them when resisting federal fugitive-slave enforcement. Modern federalism doctrine has practical consequences beyond sports betting: it can expand state experimentation, but also produce fragmented rules and more litigation over the scope of Congress’s power.

Data Points: Year the Supreme Court overturned PASPA: 2018 - The discussion centers on Murphy v. NCAA, which struck down the federal ban and enabled state sports betting legalization. Year of the Virginia/Norfolk circuit-riding case: 1820 - Used as an early example of federal-state tension and judicial reasoning about congressional power. Year Congress passed the Fugitive Slave Act: 1850 - Introduced as a major example of federal law clashing with state policy in the antebellum period. Year of the Joshua Glover case conflict: 1854-1859 - Glover’s escape, ensuing litigation, and Supreme Court review illustrate states’ rights arguments and federal enforcement. Year of the Supreme Court ruling against Wisconsin nullification: 1859 - The Court unanimously held Wisconsin could not nullify federal fugitive-slave law. Three-fifths clause fraction: 3/5 - Explained as a constitutional mechanism that increased the political power of slaveholding states. Madison's life span end year: 1836 - Mentioned to note that Madison continued defending the federal negative until his death. Civil War reference point: 1861-1863 - Used to mark the decline of states’ rights politics and the rise of unabashed nationalism.

Pivotal Quotes: "Who’s the umpire?" — Allison LaCroix: A shorthand for the core constitutional question of who resolves disputes between state and federal power. "Prima faca, I do not like it" — Thomas Jefferson: Jefferson’s response to Madison’s proposed federal negative, rejecting a congressional veto over state laws. "This is like a member of Congress is standing over the shoulder of the state legislators." — Justice Alito (as paraphrased by LaCroix): Describes the anti-commandeering concern in Murphy v. NCAA.

Implications: The episode suggests that today’s state-by-state sports betting landscape is a direct result of revived federalism doctrine. More broadly, future fights over abortion, drugs, environmental rules, and interstate commerce may hinge on how far Congress can go in directing state governments.