of Philosophy, Science & Law
March 12, 2007
The Foundations of Federalism: an Exchange
Randall P. Bezanson*
Steven C. Moeller**
* David Vernon Professor of Law,
University of Iowa College of Law.
** Adjunct Lecturer, Legal Analysis,
Writing, and Research program, University of Iowa College of Law.
One hears the word
“federalism” with some frequency these days. The debates over medical
marijuana, capital punishment, abortion, assisted suicide, capital punishment,
school financing, and even environmental policy, all have vital federalism
dimensions. On these and other issues, the word “federalism” has transformed
from a tired shibboleth for political conservatism into a more interesting, if
complex, focus for conversation and debate.
The debate continues,
but lawyers, academics, and concerned citizens who seek guidance on federalism
issues in the pages of the United States Reports will not find a
consistent theory of federalism within. The United States Supreme Court’s
fractured federalism opinions provide invariably Byzantine, frequently
contradictory, and generally unhelpful advice. We share the frustrations of
those who search for a new paradigm. In light of the enormous size and scope
of the federalism question, we feel that the best way to move the conversation
forward—the best way really to explore the secret workings of American
federalism—is to break free of existing categories. What is called for is a
free-wheeling, broad ranging, and altogether unreserved dialectic.
Accordingly, we offer the reader the following exchange as a contribution to
the ongoing scholarly dialogue on federalism.
Phantom Federalism?: the Commerce Clause
commentators consider the Supreme Court’s recent cases construing the Commerce
Clause, especially United States v. Lopez and United States v.
Morrison, to be
the central axis of developing federalism jurisprudence.
I generally think this attitude is wrong. Not only are the origins of federalism
deeply historic, running back to the very earliest decisions of the Supreme
Court, but if there are any strong doctrines of federalism in the United
States Reports they descend from the intergovernmental immunities and comity and abstention decisions
of the 1970s.
I think that a more
useful approach is to ask to what extent the Supreme Court’s decisions reflect,
or should reflect, various possible views regarding the relationship of the
federal and state governments. I want to examine two views. Let’s call them
(1) the “independent state” model and (2) the “enumerated power” model. The
independent state model focuses on areas of regulation—that is, subjects of
state and federal policy. It would protect the independence of the State
governments by using judicial review to defeat assertions of federal power in
certain policy areas, which would then be left entirely to the states. It
works exactly like individual rights: every federal power is one stick in a
bundle of sticks, and the independent state model uses the Supreme Court as a
knife to cut through them. The enumerated powers model focuses on powers
rather than policies. It would treat federalism interests as already reflected
in the enumeration of federal powers in the Constitution. According to this
model, the assertion of federalism interests in a Commerce Clause case (indeed
in any case) is question-begging. Surely if “we, the people” delegated a power
to the federal government through the act of ratification, then it’s irrelevant for the purposes of constitutional analysis whether anyone
thinks the delegation was hasty or unwise. It’s simply what the Constitution
In this sense, the
independent state model is fairly radical. While the Supreme Court briefly
flirted with it in National League of Cities v. Usery, the enumerated powers model generally predominates, as it should. When we
ask whether Congress can do something we really should ask whether the
Constitution permits Congress to do it, right?
A: Obviously so,
but nevertheless Lopez and Morrison stirred quite the
controversy. It’s not clear to me, however, that the narrow holdings of Lopez and Morrison justified the tumult. In Lopez, the Supreme Court
struck down a Gun Free School Zones Act provision that criminalized knowing
possession of a firearm near a school building. Chief Justice Rehnquist’s
opinion for the Court argued that carrying a handgun in or near a school is
neither commercial nor economic, “however broadly one might define those
debatable proposition, to be sure, but I’m inclined to agree. Whatever the
words “Commerce … among the several States” may mean, they do not directly refer to intrastate weapons possession.
Chief Justice Rehnquist
allowed that the government might have prevailed if the statute were a
necessary, “essential part of a larger regulation of economic activity,” but
the provision at issue in Lopez plainly was not.
Yet this approach would later become decisive in Justice Scalia’s concurrence
in the result in Raich, which we will probe later, where he viewed the
California medical marijuana law as purely local, but nevertheless a necessary
adjunct to the federal government’s admitted – and direct – Article I, section
8 power to regulate interstate commerce in marijuana.
The local activity being regulated, in other words, does not have to affect
commerce among the States, as it had to do in Lopez, but may instead
affect the government’s direct (and plenary) regulation of commerce among the
Lopez, however, was a “pure” necessary and proper commerce
clause case, and thus the law could be sustained only if the regulated local
activity of firearm possession near a school itself had a substantial affect on
interstate commerce. The Court’s basic claim that it didn’t because such gun
possession is neither economic nor commercial isn’t too radical. Regardless of
whether Lopez is right, the Court speaks in the language of what you
call the enumerated powers model: “we, the people” did not delegate to
Congress the power to punish simple weapons possession, unless the government
proves that a specific act of possession, in a specific case, is connected to
interstate commerce—as when a statute enumerates interstate travel or use of a
weapon that has traveled in interstate commerce as an element of a criminal
A few years later, in Morrison,
the Supreme Court struck down a provision of the Violence Against Women Act.
The provision created a federal civil damages action for victims of violent
conduct that is motivated by the victim’s gender. The holding necessarily
sweeps somewhat more broadly than Lopez because Congress explicitly
found that when considered in the aggregate, violence against women that is
motivated by the victim’s gender seriously affects interstate commerce, findings that the Court criticized and rejected.
Admittedly, the Chief
Justice strays into your independent state model. He cited Justice Kennedy’s
concurrence in Lopez and discussed worries that Congress could decide
for itself that aggregate effects were present and regulate “family law and
other areas of traditional State regulation” based on “the aggregate effect of marriage,
divorce, and childrearing on the national economy.”
But the Chief Justice’s opinion pulls itself back from the brink of the
independent state model by establishing a fairly clear rule: he explicitly
“reject[ed] the argument that Congress may regulate noneconomic, violent
criminal conduct based solely on that conduct’s aggregate effect on interstate
The majority saw the core question as one of delegation. The people delegated
limited powers to Congress. The ratifying population almost certainly did not
mean to delegate “police power” to a distant federal legislature or to abolish
the “distinction between what is truly national and what is truly local.”
Independent states reasoning, I suppose. But the rule itself isn’t
specifically tied to the States as States, and so it fits more nearly
with your enumerated powers model. The federalism rhetoric isn’t necessary for
or relevant to the result.
So if this is a
federalism revolution, it is a tame one indeed—though I worry that we’ve
reached that conclusion by defining federalism so that almost no one is in
favor of it. Loose talk of “police power” is disturbing, but very few federal
statutes rest solely on aggregate economic effects analysis. Let me
suggest something slightly different. Commerce Clause law before Lopez was hardly unambiguous. I think Eric Claeys’s explanation of the New Deal
cases is a good one. He argues that post-New Deal rational basis review was
really a compromise between progressive reformers (who believed in unlimited
congressional power) and the Supreme Court (which the public must perceive to
be principled). Professor
Claeys describes the New Deal-era Supreme Court’s “key innovation” as the
modification of the substantial effects test in the NLRB v. Jones &
Laughlin Steel case:
that case, he argues, “reversed the basic orientation of pre-1937 doctrine by
reversing the direction of the ‘effects’ test. Roughly speaking, from Gibbons to the New Deal, the ‘effects’ test tried to maintain a principled line between
interstate commerce and local activities” by permitting Congress to invoke the
Necessary and Proper Clause and the Supremacy Clause to regulate intrastate
activity “only after it was [already] clear the law’s primary effect was to
regulate interstate commerce.” The
new substantial effects test, by contrast, permitted Congress to regulate
nearly any activity, but “[b]ecause the test continued to distinguish between
interstate commerce and local activities” in principle, “it preserved the idea
that the Commerce Clause was one of several limited and enumerated powers.”
I’m more sanguine, or perhaps less cynical, than Professor Claeys, but plainly Lopez and Morrison disambiguate the New Deal settlement that he aptly
So while Lopez and Morrison agitate some lawyers and law professors, they do not, without
more, inject radical extratextual federalism principles into constitutional
law. I’m not conceding that the decisions are correct, but it’s clear to me
that Lopez and Morrison don’t disturb the core Commerce Clause
precedents. The respondents in Gonzales v. Raich relied on Lopez and Morrison to ask the Supreme Court to hold
that the Controlled Substance Act’s global criminal prohibition against
marijuana was invalid as applied to intrastate, medical use of marijuana by
terminally ill cancer patients. In his opinion for the Court, Justice Stevens
stated that “[i]n their myopic focus, [respondents] overlook the larger context
of modern-era Commerce Clause jurisprudence preserved by those cases.” Lopez and Morrison involved challenges alleging “that a
particular statute or provision fell outside Congress’[s] commerce power in its
entirety” rather than a challenge “ask[ing the Supreme Court] to excise
individual applications of a concededly valid statutory scheme.”
As I’ve re-told it,
surely Professor Claeys’s story leaves out many of the details. But I think
that it’s generally true. It seems to me that the New Deal Justices left us
with something like what Cass Sunstein has called an “incompletely theorized
Rational basis review left Congress with immense power, but avoided an official
abdication of judicial review. Lopez, Morrison, and with time, Raich,
disambiguate the agreement. The Supreme Court has said, in broad strokes, that
we have to live with immense congressional power and that the Supreme
Court will never abdicate its power of judicial review.
B: I think we
disagree in part. It sounds like you’re pretty much willing to do away with
talk of “federalism” and chalk it all up to enumeration. Hence your complaints
about Morrison. I grant that you’re surely right that federalism talk
need not, and perhaps should not, play any direct role in analyzing the
Constitution’s text, given that any interest in federalism is already reflected
in the methodology of enumeration. Our own Iowa City’s Nuclear Weapons Free
Zone ordinance, for
example, should pose no legal obstacle to a federal military installation that
stores and maintains nuclear weapons, provided that the facility is otherwise
constitutionally established. Raich seemingly stands for the broad, and uncontroversial, proposition that when
the federal government has a plenary power, that power prevails.
But from a broader
perspective your position is too dismissive. Federalism establishes the
background for an enumerated powers analysis. The distributions of decision-making
authority in the Constitution are a reflection of a government marked by “dual
sovereignty,” as Justice Kennedy has put it. Think
about Iraq: a federal government with three separate “States” (Kurds, Shiite,
and Sunni/Shiite mix in the middle). Won’t the power of the central government
there necessarily have to be limited so as to allow governing autonomy in the
“States” so that religious, cultural, and economic differences can continue to
be reflected? In this sense, Iraq is not much different that the original
American union of disparate colonial interests, where decentralized diversity
was the political price of military and economic unification.
At bottom, the Supreme
Court’s holdings in Lopez and Morrison purport to give enumeration
some teeth as a true limit. Why? Because of the federalism roots of the
enumeration methodology itself. Chief Justice Rehnquist was eager, and
correctly so, to note in Morrison that the framers “[d]epart[ed] from
their parliamentary past,” and “adopted a written Constitution that further
divided authority at the federal level so that the Constitution’s provisions
would not be defined solely by the political branches nor the scope of
legislative power limited only by public opinion and the Legislature’s
Congress is not Parliament; it was not meant to have the powers of a unitary
government; and any constitutional doctrine that gives Congress completely plenary powers (or, what is really the same, the power to define its powers) is at loggerheads
with the core principle of enumerated, and therefore limited, federal power.
My guess is that the Justices are trying to enforce limits with a view to, but
without explicitly incorporating, the States’ interests and extratextual
In short, I think that
there really is a vague, weak kind of judicial federalism at work in these
cases. I gather from what you’ve written that you take a dim view of it, but
why should you? If the federalism at work is really as demure as I have cast
it, why fret about the Supreme Court’s taking a moment to reflect on the
framers’ emphatic rejection of unitary government and their quite deliberate
choices to distribute decision-making powers in certain ways and to specific
levels of government?
A : There’s nothing wrong with careful attention to
history, but the Supreme Court doesn’t have license to restructure the
government with substantive federalism principles. I concede that it has to
draw lines based on enumeration in the text, but it cannot draw them just
anywhere. Conservative talismans like “federalism” and “separation of powers”
don’t actually appear anywhere within the four corners of the Constitution. A
Supreme Court decision that imposes limits on Congress’s powers imposes limits
on democracy, and should be grounded in an intellectually coherent account of
the Constitution’s text. That said, surely the Morrison majority was
right to State that every commerce regulation the court had sustained up to up
to Lopez regulated some activity that was either “economic” in some
attenuated sense or that had substantial effects on interstate commerce.
I think you can articulate a distinction between raising crops like
wheat and marijuana on the one hand (economic) and acts of violence on the
other (noneconomic), but the ghost of Justice Holmes looms large: given that
one can draw a distinction, the relevant question is why he or
she should draw it. I
just don’t see anything coherent here. It’s all ad hoc. So even if
judicial review isn’t presumptively illegitimate in this area, Lopez and Morrison don’t coherently reconstruct Article I, section 8. Or am I
asking for too much?
B; I think
you’re beating something of a straw man. Of course I agree that interpreting
constitutional language to get at substantive results is illegitimate, even
when the result in question is some unquestionably relevant abstraction like
“federalism” or “separation of powers.” The specific purposes of the framers
and the ratifying population matter. But the problem with this vague
formulation is that exactly nine Justices on the Supreme Court are sure to
agree with it. It verges on tautology; it’s not a useful tool for gaining
purchase on the Court’s work.
Perhaps something like
the following analysis is more helpful. The Justices, I think, paused to
reflect on the original reasons for the enumeration of Congress’s powers in the
Constitution. The test we have after Morrison does not literally
incorporate some formulation like “traditional State concern” as one of its
this minimal sense, they didn’t use rigid concepts of federalism, such
as exist in the independent state model, as part of the judicial gloss on
Article I. Lopez and Morrison are quite noticeably distinct from
the now-repudiated Fair Labor Standards Act case, National League of Cities
v. Usery, and the Eleventh Amendment cases, which use independent
State concepts in this sense.
Rather, the majority opinions in both cases refer to or mention them as illustrative of the nature of the federalism interests supposedly
codified in the original enumeration. One
can believe that Lopez and Morrison are technically wrong without
embracing the fairly radical idea that mere reference to federalism
concerns is illegitimate when those concerns are not explicit in the
Constitution’s text, which is what you seem to be arguing. Surely you are not
claiming that merely invoking the concept of federalism is inappropriate,
either historically, as a matter textual principles and purposes, or practically.
If you are, then wouldn’t you have to give up any robust reading of the Bill of
Rights, and any further extension of individual constitutional rights claims?
The First Amendment and substantive due process cases are brimming, even more
so than the federalism cases, with extratextual principles, and the Court
invokes these principles to upset democratic political outcomes.
A: I’ll answer
your straw man with a dead horse. Courts aren’t elected, but courts don’t need
to be elected legitimately to do some things. Invoking extratextual principles
to police violations of principles established to protect the natural and human
rights of individuals is clearly different than invoking extratextual
principles to restructure the powers of government. The Constitution is a
document of the Eighteenth Century. Its electric current is the rhetoric of
individual rights and policing the abuse of government power.
The Bill of Rights records and memorializes these rights as strong prohibitions
on government conduct. It seems impossible for a legal document to capture the
full meaning of the rights the Constitution is supposed to protect. Thus, the
Supreme Court must invoke extratextual principles. Those invoked by Justice
Chase in Calder v. Bullor by
the “established method” of the substantive due process cases provide imperfect legal definition to these rights. Unless one is willing to
throw out the centrality of individual rights to the constitutional experiment
(I am not), then extratextual principles are unavoidable in the individual
By contrast, the
division of power between the federal and State governments serves only
instrumental ends. Whereas individual rights are ends in themselves,
structural principles are not. We do not place limits on the regulatory powers
of the federal government because the State governments are like
individual rights holders. State
governments are creations of “we, the people” as well. If so, then enumeration
shouldn’t amount to anything more than enumeration: the extratextual
principles invoked to restrict Congress’s power to govern the States must
themselves be only instrumental. That is, they must be procedural or
structural, not substantive, as they are in Usery or in the Eleventh
Amendment context. The Supreme Court should not invoke extratextual principles
merely to freeze into place particular political settlements or institutional
arrangements, unless those principles unambiguously indicate that the historic
arrangement is instrumentally necessary for the perpetuation of the
constitutional regime. In other words, I’m loudly objecting to your
independent States model of federalism, because it treats federalism problems
like individual rights problems.
We don’t do that in the
separation of powers context. Consider, for example, the Commander in Chief
Surely this clause, like the Commerce Clause, is governed by enumeration-based
limits. Plainly, however, the clause does not exist in order to preserve the State of military science in 1789. Nuclear weapons, stealth bombers, and
aircraft carriers give the President vast, imperial powers—powers that surely
would alarm the framers. Yet it would be legally absurd to interpret the words
“Army” and “Navy” in the Commander in Chief Clause not to authorize the
President to use these weapons on the theory that because the technologies did
not exist when the Constitution was ratified they may not constitutionally be
used by the “Army” and the “Navy.” By and large, the Justices appear to have
no such plans for the Commerce Clause. Gun regulation, for some purposes, is
off limits, but medical marijuana is not. Unless we have a significantly more
radical project of this kind, then we are adrift without guiding principle—we
have essentially ad hoc limits on the commerce power. Except perhaps,
for Justice Thomas, there
isn’t much federalism left after Raich. Only Chief Justice Rehnquist
and Justice O’Connor agreed with Justice Thomas, and they are no longer on the
B: You’re being
somewhat unfair. The Commerce Clause cases aren’t really ad hoc. Or,
at least, Gonzales v. Raich shows
that they don’t have to be. I grant you that except for Justice Scalia’s
concurrence in the judgment, the opinions are pretty uninteresting. Justice
Stevens is at his muddied best—it is impossible to pin down his holding. Can Congress legislate by categories or is there a
required jurisdictional element in as applied cases? I have absolutely no idea
from reading the opinion. And I have not seen Perez cited so much or so singularly ever before. Justice O'Connor offers up much
the same thing. Where
does this fuzzy lingo about historic spheres of sovereignty, encroachment,
States as laboratories, and federalism as structural liberty all fit into a
clear and coherent idea, principle, doctrine, or rule? I would say that she
hasn’t got the foggiest idea. I don’t, frankly, see the Court returning to Usery any time soon. Justice Thomas, as you note, is on his own.
It’s Justice Scalia’s
concurrence in the judgment that
speaks to our disagreement. He sees the case as an enumerated powers case, not
one about federalism or state sovereignty. The case presents a simple question
about the extent of Congress's legislative power under Article I; Congress has
the power to enact the Controlled Substances Act provision prohibiting
intrastate, medical use of marijuana because that regulation is necessary and
proper to achieving a concededly permissible regulatory purpose under
Congress’s core and plenary Commerce Clause powers—prohibiting the interstate
market in marijuana. One
could, of course, make the argument that the regulation was actually
unnecessary because its contents could easily be extracted from the federal law
without compromising the Controlled Substances Act’s effectiveness, but for one
reason or another this argument didn’t wash. In
itself this is interesting for Justice Scalia—it is deferential, it rings of McCullough
v. Maryland, and it balances interests. But I
take it his point is very simple: the case was not about federalism.
This position, however,
is not necessarily inconsistent with the weak form of extratextual federalism
in Lopez and Morrison. Perhaps Justice Scalia simply believes
that when Congress has established a larger framework for regulating interstate
commerce under its undisputed power, deference under McCulloch and the
Necessary and Proper Clause is appropriate. In other words, I think you’re
presenting a false dichotomy. The alternative to the dissenters’ views in Raich is not necessarily your own brand of liberal federalism.
The Moving Target: Sovereignty
A: I disagree.
I think the theory of sovereignty that Justice Scalia endorsed in U.S. Term
Limits, Inc. v. Thornton is
inconsistent with the lukewarm federalism of his Raich concurrence. Term
Limits involved a challenge to an Arkansas State constitutional provision
that imposed term limits on candidates for Congress. The Supreme Court struck
down the provision on the theory that the States shouldn’t be permitted to
interfere with the election of the federal legislature.
Justice Thomas dissented on the opposing theory that “[n]othing in the
Constitution deprives the people of each State of the power to prescribe
eligibility requirements for … candidates … it raises no bar to action by the
States or the people.” Justice
Thomas’s dissent is backed up by a theory of political power and sovereignty:
“the people of the States,” he argues, “need not point to any affirmative grant
of power in the Constitution in order to prescribe” laws that affect the
federal government, because “[t]he ultimate source of the Constitution’s
authority is the consent of the people of each individual State, not the
consent of the undifferentiated people of the Nation as a whole.” On one level this is an argument about governmental immunities. On another,
it is an image of constitutional power. It’s something that flows from a
source—like water, sound, or electricity. What’s important is tracing
power back to the source.
Justice Thomas finds
the source in the Article VII ratification procedure: “The Constitution took
effect once it had been ratified by the people gathered in convention in nine
different States. But the Constitution went into effect only ‘between the
States so ratifying the same,’ … it did not bind the people of North Carolina until they had accepted it. In Madison's words, the popular consent upon
which the Constitution's authority rests was ‘given by the people, not as
individuals composing one entire nation, but as composing the distinct and
independent States to which they respectively belong.’” Justice Thomas has argued that “the
people of the several States are the only true source of power.” And so the Tenth Amendment, I gather,
is an express articulation of this view rather than a tautological confirmation
of enumeration: “As far as the Federal Constitution is concerned, then, the
States can exercise all powers that the Constitution does not withhold from
them and they are constitutionally supreme. All power may be traced to them.
The Federal Government and the States thus face different default rules: Where
the Constitution is silent about the exercise of a particular power – that is,
where the Constitution does not speak either expressly or by necessary
implication – the Federal Government lacks that power and the States enjoy it.” The unstated premise of Justice Thomas’s claim, I
gather, is that our ability to trace, ex post, the lines of delegation
is what really matters when deciding whether Congress has some power. That’s
not what we’re saying Justice Scalia’s Raich concurrence says—he’s
clearer than Justice Stevens, but Scalia still muddies the waters.
intrigued. Justice Scalia joined Justice Thomas in Term Limits, but I
don’t know that he’s ever expressed anything quite this strong in his own
voice. It’s best to remember that a Supreme Court Justice doesn’t necessarily
agree with every logical implication of every opinion he or she joins. Perhaps
a disagreement between Justices Scalia and Thomas (and Chief Justice Rehnquist,
whose votes track Thomas’s in both cases) was submerged in Term Limits.
I have never thought that Justice Scalia is especially committed to returning
the Constitution from exile. But
what, exactly, is the character of the disagreement we’ve identified? What is,
or what would be, the counterview that permits Scalia to concur in Raich?
A: It’s hard to
say. Perhaps from Justice Thomas’s perspective, the problem with Scalia’s
opinion in Raich is just that it muddies the ultimate sources of
sovereignty. Justice Scalia’s federal power to regulate intrastate noneconomic
activity as long as there is a larger regulatory framework is a creature
without obvious federalism genealogy. It is as if Justice Thomas believes that
at the federal level one must have a Parliament or a delegate legislature, but
not both. In effect, Justice Scalia strives to avoid this momentous choice.
He gives us neither Parliament nor elemental, foundational, original States.
Some kind of legislative Chimera. Perhaps he simply cares a great deal less
about tracing the strands of delegation and properly characterizing Congress
than does Justice Thomas.
But I think that’s
somewhat inconsistent for Justice Scalia. His separation of powers
jurisprudence devotes a great deal of care to abstract questions of authority
and the characterization of government power. Let’s call this constitutional “formalism.” A formalist,
in this sense, “generally assume[s] that the Constitution recognizes three
kinds of functions—legislative, executive, and judicial—that must be assigned
to the corresponding branch of government,” so that “separation-of-powers
issues turn largely on the classification of functions.” This bears a close relation to late Nineteenth
and early Twentieth Century legal formalism.
Perhaps it’s the same thing.
In any event, Justice
Scalia’s dissents in the
independent counsel statute case, Morrison v. Olson, and the first Sentencing
Guidelines case, Mistretta v. United States, focus on the correct abstract
characterization of the government powers at issue. I’m associating Justice Scalia with the
mode of argument that appears in the opinions for the Court in Nixon v. United States, INS v. Chada, Clinton v. New York, United States v. Curtiss-Wright
Export Corp., Dames
& Moore v. Regan, and Youngstown
Steel Sheet & Tube Co. The
much-discussed “unitary executive” theory, too. The common feature here is that formalism
is not a context-sensitive approach. It relies on the courts to enforce
clearly drawn, bright-line boundaries between governmental institutions and
powers. And we can see that attitude heartily at work in Scalia’s
dissents in Olsen and Mistretta, and Thomas’s dissent in Term
Limits. All three opinions treat power as the plenary right to operate within a defined space—that’s the
metaphor here, physical separation and some room to act, to do whatever one
feels is necessary within bounded limits. I think it is fair to label Justice
Scalia a formalist in this sense. It’s an attitude that’s hostile to the
Necessary and Proper Clause, so why not then label his Raich concurrence,
and its reliance on implied powers and federal interests, an inconsistency?
Why should the same Constitution that provides a springboard for formalist
analysis in the separation of powers context be read any differently in the
B: I’d guess that you really mean to
say that it shouldn’t be. And that Justice Scalia should abandon his formalist
ways for the alternative: “functionalism,” which “takes as its foundational
commitment the different but equally familiar ideal of ‘checks and balances’”
and argues that “there can be no rigid division of governmental functions into
three sharp categories, each the distinctive province of a single branch of
government” so that “actions and institutional arrangements should be measured
by reference to … characteristic functions of the separation of powers.” That is, what is separating the powers
supposed to do?
But I think that
Justice Scalia’s views are more subtle than you’re letting on. Furthermore I
think one can make the case that Justice Thomas has more or different
formalistic commitments. For example, in Term Limits Justice Thomas
coyly suggested that Garcia v. San Antonio Metropolitan Transport
Association, which repudiated Usery, was wrongly decided and flatly
stated that the Term Limits majority misinterpreted McCulloch when it argued that the Constitution implies a prohibition on State-mandated
electorial qualifications for congressional candidates because the Tenth
Amendment delegates all powers that aren’t at least mentioned in the text. This is not quite Justice Scalia’s
structural formalism, which I take to be exemplified by his dissent in the
independent counsel case, Morrison v. Olsen.
A: Maybe you
have a point. In a 2004 Spending Clause case called Sabri v. United States,
the Supreme Court upheld the federal statute criminalizing bribery of State,
local, or tribal officials when the program receives at least $10,000 in
federal funds as an exercise of the Spending Clause.
In that case, Justice Thomas concurred in the judgment.
He would have upheld the statute as a valid exercise of the commerce power.
He disagreed, however, with the majority’s conclusion that the statute was a
valid exercise of the spending power. Specifically, he argued that the statute
could not be justified as a necessary and proper extension of the Spending
Clause power because it ran afoul of the Court’s test for applying the Necessary
and Proper Clause: the law must be “‘plainly adapted’” to some permissible end
enumerated in Article I.
Justice Thomas proposed his own test for determining whether a statute is
“plainly adapted”: “it would seem,” he wrote, “necessary to show some obvious,
simple and direct relation between the statute and the enumerated power.”
That isn’t rational basis. And it isn’t nearly as deferential as Justice
Scalia is in Raich. So perhaps there’s a distinction to be drawn.
Could it really just be about judicial review?
III. Sovereignty Divided: A Fractured Federalism
possibly. But let’s shift gears for a bit. With all this talk of the
conservative view in Term Limits, I wonder if the majority opinion is
any more coherent. I don’t think so. Justice Stevens’s opinion for the Court
doesn’t answer the most important question in the case. Nothing about either
the existence of a national Constitution or the concept of enumerated powers
compels him to strike down the Arkansas constitutional amendment at issue in Term
Limits. Justice Stevens argues that the “State-imposed restriction is
contrary to the ‘fundamental principle of our representative democracy,’
embodied in the Constitution, that ‘the people should choose whom they please
to govern them,’” but
stating and proving are different things. Furthermore, this particular
formulation is deeply question-begging: the conclusion (that the Constitution
is a unifying document of the whole people) is part of the premise (that the
Constitution is an act of delegation by the whole people). And it almost has
the ring of unitary government to it and I think we both agree that Chief
Justice Rehnquist is right to say that that’s not what the Constitution
True, Justice Stevens
invokes Powell v. McCormack and the John Wilkes affair, but these examples are less illuminating than one might think. In the Powell case, Congress voted to “exclude” a member accused of financial improprieties
before he was seated by majority vote rather than to “expel” him after he was
seated by the constitutionally mandated two-thirds vote.
The Supreme Court, in effect, ordered the House of Representatives to seat him.
Mr. Wilkes was a Member of Parliament in the Seventeenth Century, who printed
his criticism of a Franco-British treaty; Wilkes’s scurrilous journalism
“earned [him] a conviction for seditious libel,” nearly two years in prison,
and expulsion from Parliament.
Wilkes’s district repeatedly re-elected him to his seat; Parliament repeatedly
prevented him from taking it; and eventually, Wilkes’s political fortunes
reversed and “the House of Commons voted to expunge the resolutions that had
expelled [him] and had declared him ineligible, labeling those prior
resolutions ‘subversive of the rights of the whole body of electors of this
Justice Stevens also
reviewed American historical materials. He cites The Federalist for the
proposition that the “plan of the Constitutional Convention did not contemplate
‘an entire consolidation of the States into one complete national sovereignty,’
but only a partial consolidation in which ‘the State governments would clearly
retain all the rights of sovereignty which they before had, and which were not,
by that act, exclusively delegated to the United States.’”
But that principle doesn’t really answer the Tenth Amendment argument. Justice
Stevens gets to the heart of his argument when he invokes McCulloch v.
Maryland to argue that “the text of the Tenth Amendment draws a basic
distinction between the powers of the newly created Federal Government and the
powers retained by the pre-existing sovereign States. As Chief Justice
Marshall explained, ‘it was neither necessary nor proper to define the powers
retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the
constitution, what they were before, except so far as they may be
abridged by that instrument.’” Stevens
surely has the winning argument here. The powers of the State governments are,
constitutionally, what they are. They were created by the act of ratification
no less then the federal government’s powers were. So someone claiming State
power under the Tenth Amendment has to point to something more than simply the
fact of omission from the four corners of the Constitution to make a really
compelling Tenth Amendment argument. If this isn’t true, then McCulloch was wrongly decided, and
Justice Thomas’s arguments in Sabri and Raich were not too
extreme but rather too moderate.
But this is all rather
beside the point. Justice Stevens has got to point to something more than the
text as well, because the Qualifications Clause doesn’t obviously forbid the
States from establishing additional qualifications for congressional
candidates. In some sense, he has got to be saying that the States shouldn’t
have that power. He must look into the murky depths to divine what is properly
among the original retained powers of the States. Inscrutable common law
But in this respect,
Justice Stevens is fairly straightforward about what the Court is doing.
Justice Stevens argues that pointing to the missing prohibition on additional
qualifications “overlooks the revolutionary character of the Government that
the Framers conceived,” because “the Framers were presented with, and
eventually adopted a variation of, ‘a plan not merely to amend the Articles of
Confederation but to create an entirely new National Government with a National
Executive, National Judiciary, and a National Legislature.’ In adopting that
plan, the Framers envisioned a uniform national system, rejecting the notion
that the Nation was a collection of States, and instead creating a direct link
between the National Government and the people of the United States.”
That is, the Constitution creates what the Articles didn’t: a national
the States can’t interfere with the structural rules that create and constitute
that legislature. That’s a pragmatic, almost common-law, approach to this
problem. It makes a great deal of sense to me, and, I suspect, to you. It’s
also a lot more satisfying than ghostly appeals to sovereignty.
A: Surely the Term
Limits majority is right to say that Representatives are federal
officers—even though they are “chosen by separate constituencies” they become
“servants of the people of the United States” when elected, as opposed to mere
“delegates appointed by separate, sovereign States.”
Perhaps this rhetoric is the handmaiden to your eminently pragmatic point—if we
didn’t act as if the office of Representative were essentially federal in
character, the States would effectively control the membership of the House.
But I think there’s something more complicated at work here.
The Term Limits Court rejected Justice Thomas’s more specific argument that “because the States
ratified the Constitution, the people can delegate power only through the
States or by acting in their capacities as citizens of particular
States”; rather, the Court maintained, the Constitution “was submitted to the
whole people” of the country—who only met in separate places to complete
the act of ratification. I
think it’s fair to say that Justice Thomas believes the ratification effected a
one-directional delegation. Power goes from the people as citizens of
the States to the federal government. Indeed, Justice Thomas sees
evidence for his bottom-up approach in the fact the Constitution provides for
no election of any officer by the whole people of the nation—every election,
even the presidential election, is mediated through the citizen’s citizenship of
a State. But
Justice Stevens sees something different in the fact that the States retain
their salience in the Constitution’s election scheme: complex layers of
delegation and redelegation. The ratifying population delegated the power to
hold federal elections to the federal level by ratifying the Constitution, and
through the Constitution they were re-delegated a second time to the
States—that is, the conduct of elections was “delegated to, rather than
reserved by, the States.”
Is there anything but a
choice between dueling one-directional constructs? In his concurrence, Justice
Kennedy offers a multidirectional alternative:
In one sense it is
true that ‘the people of each State retained their separate political
identities,’ for the Constitution takes care both to preserve the States and to
make use of their identities and structures at various points in organizing the
federal union. It does not at all follow from this that the sole political
identity of an American is with the State of his or her residence. It denies
the dual character of the Federal Government which is its very foundation to
assert that the people of the United States do not have a political identity as
well, one independent of, though consistent with, their identity as citizens of
the State of their residence. It must be recognized that ‘for all the great
purposes for which the Federal government was formed, we are one people, with
one common country.’
That is to say that
“we, the people” have multiple political identities. Our States have complex
interacting sovereignties and our citizens have complex interacting political
capacities. I am inclined to side with Justice Kennedy over Justice Stevens.
The Constitution was ratified only once. In the moment of ratification,
political power didn’t flow one way or the other. The political power of the
people was singular, more or less mixed together—as in a stew. And “we, the
people” ladled it out to different agents for different purposes.
There’s much to be
admired here. Surely the people have a right to see their governments work
independently within the proper bounds of their respective constitutional
charters without troublesome meddling from their counterparts at the other
level, yet equally surely, all power is not fractured, with the federal
government and the States locked into a struggle for shares of the original
delegation. I’m reminded of Professor Amar’s suggestion that the States are
meant to fight against the federal government for the rights of the people and Professor Pettys’s article about “federalism’s forgotten
marketplace”—competition for hearts and minds.
There’s something here that is intellectually more appealing than Justice
Stevens’s unitary government and Justice Thomas’s fractured government. Law,
like life, is complicated, and we shouldn’t expect the arrows of power and
delegation to point all in one direction.
B: Be that as it
may, none of this provides any guidance to courts. I’ll hold off on commenting
about Justice Kennedy for a bit. Justice Stevens’s view in Term Limits that
the States have no power over qualifications rests ultimately on the conclusion
that the Constitution did not “delegate to” the States the power to govern
elections to federal office. There are two possible explanations for this
conclusion: (1) that the specific history of the qualifications provisions of
the Constitution supports an exclusive federal power (quite apart from the way
other power-granting provisions of the Constitution might be read); or (2) that
as a general rule all matters lying in the “shadow” of any federal power should
be read as part of the federal power itself, thus pre-empting State power, in
the absence of delegation. Stevens, frankly, does not make the case for
alternative (1). Yet alternative (2) seems, to me, to be untenable and flatly
inconsistent with broad areas of doctrine, such as McCulloch, the
Commerce Clause, and the negative Commerce Clause cases, which are the stuff of
balancing and policy and necessity, and not of rules based strictly on
philosophical definitions of power. Moreover, the idea of “implied powers”
(except in Curtis-Wright by
some accounts) has never been accepted by the Court and was, as I recall,
pretty clearly rejected by the framers.
Justice Stevens’s idea
that “we, the people” as a whole granted, effectively, all powers to the
federal government except for a (largely federally determined) residuum of
uncertain impliedly delegated authority (not sovereignty) to the States seems
historically and politically untenable, just as Justice Thomas’s opposite view
is untenable. Enumeration, instead, consists of a workable and instrumental
form of limitation on power, not as a manifestation of sovereignty. Of course
I’ve overstated Justice Stevens’s view. But not unfairly, I think, and for
what it’s worth, doing so makes my point more graphically. More basically, I’m
struck by how irrelevant both Stevens’s and Thomas’s two source-of-power
constructs are to the result of the case. If Justice Stevens’s view is right,
that conclusion does not mean that unlimited congressional tenure is part of
the implied exclusive federal power. If Justice Thomas is right, that does not
mean that qualifications exclude length of service and thus lie within his
pro-State default rule. The constructs, to be sure, lend a certain background air
to the decisions, but nothing really specific to the resolution of the issue
Add to this the fact
that, practically if not politically and constitutionally, neither the federal
government nor the States look anything like the constructs present them. In
fact, in practice, and in historical pattern, our system of federal and State
governments cannot be described as consisting of one sovereign and a bunch of
delegees. Both are, or are not, sovereign in some ways. Both are repositories
of direct will from their respective polities. And in the case of the federal
government, where the representatives, while federal in duty, are elected
locally, and where, until the Seventeenth Amendment, Senators were distinctly State agents, the pattern of sovereignty is deeply
ambiguous. Process-based, one might say, rather than power-based.
As for Justice Thomas,
it seems to me that he has the better of the historical interpretations, but in
the end his interpretation doesn’t compel his default rule: literal and narrow
reading of federal power with the federal government as the delegee. Instead,
it reflects the fact that at the beginning both governments were to be
“sovereign” in unforeseen ways, and to some extent each would have to muddle
through with the other against that background. The job was to transcend
differences of the narrow and regional sort in order to make a nation.
To decide the case on abstract constructs that do not at all flow from the
history, on default rules, and on the presence or absence of pre-existing
power, seems, well, silly and unnecessarily ideological.
So I confess: I have a
growing, healthy skepticism about pure principle and coherent philosophy when
it comes to “federalism” and its meaning. So I have a dispute with both you
and Justice Kennedy. It’s all too far removed from practicality. We can say that there’s dual sovereignty, but that statement doesn’t change anything. It
doesn’t explain much of the Constitution. Remember that the framers were
practical men. Maybe when it comes to federalism and sovereignty there was no
overarching conception, but instead a set of practical, yet untested,
structures that were conducive to limitation of power and a search for
accommodation and adjustment to change over time.
A: I’m not quite
willing as you are to dispense entirely with the rhetoric of sovereignty.
Surely the idea of sovereignty is relevant. Surely the liberal Justices now on
the Supreme Court have done less than they might to offer a compelling
countertheory of State sovereignty. But I think something more can be said for
their general approach of balancing federal and State interests across the
board. If we adopt Justice Kennedy’s way of thinking, there’s no need to say
that the States get table scraps. Rather, “the people” are the ultimate source
for both federal and State sovereign power.
They freely elect to entrust some of it to the federal government and some to
State governments. The symbol of that delegation is the Constitution's text.
Neither the federal nor State governments need be superior. Neither need
possess ultimate sovereignty. What we have, rather, is sovereignty divided.
It’s true that all
legal limits on federal power are
enumerative. But it does not follow that State and federal power seesaw with
one another. If that were true, it would be as if the source of State
constitutional power were federal enumeration.
The same people underlie both federal and State power, but the powers of each
are conceptually independent of one another. The fact that time and technology
have elevated this constitutional provision above the others is an argument for
amending the Constitution, not bootstrapping abstract principles of federalism
into constitutional law. Thus nowadays State sovereignty may not mean very
much in practical terms, but it remains unchanged. Nothing about the concept of State sovereignty guarantees that it retains, or should retain, its once
strong practical importance as time progresses. I think you agree. But if you
do, I just don’t see how you can avoid conceding that some complex
Kennedy-style approach to sovereignty is valid.
B: Now we’re getting somewhere! The subject
is sovereignty and whether it has any real or consistent meaning—and perhaps
whether it should have any meaning in the Twenty-first Century. Let me
start us again from the foundations. We want to get a handle on the essential
nature of the relationship between the federal and State “sovereigns.” What,
precisely, is the union? And what are the ground rules for dispute
resolution? The concept of sovereignty matters here, but in the United
States Reports, it is selective, perhaps inconsistent, and wears many
faces. The Commerce Clause cases are cases about sovereignty only in the weak
sense that the constitutional device of enumeration is a form or manifestation
of sovereignty. Which, of course, on some level it is. The truism that
federal sovereignty is confined to those powers assigned to the federal
government (some of which are shared with others: States, other public actors,
private parties, and individuals; some of which are concurrent with rival, but
subordinate, powers in the States) is, after all, true. So Lopez and Morrison are about sovereignty, but in a largely indirect sense: the content of
federal power, which is supreme when possessed, and the interests of the losing
party if that power is exceeded. So also Raich, a result of the plain
fact that when the federal government directly and indisputably exercises its
plenary powers to regulate on an issue, it must be able to regulate local
activity in ways necessary to accomplish the federal aim, lest States be free
by local acts of civil disobedience to undermine the federal enumerated power.
question gets considerably more interesting when one shifts focus to
intergovernmental immunities, and specifically to regulatory immunities. It
was here that the Court tried to define the meaning or content of sovereignty
in a long line of cases culminating in National League of Cities v. Usery.
There the Court effectively defined the minimum of sovereignty as a State
possessed of some measure of policy-making discretion at the legislative level,
responsible to its polity and acting in the polity’s interests; a modicum of
executive power and discretion independent of control by the federal sovereign;
and judicial authority over a range of subjects not subject to federal
oversight, by judges not subject to federal employment mandates.
And finally, and perhaps more importantly, a measure of power of
self-definition, in an anthropomorphic mode, some free will. The terminology
employed by the Supreme Court in service of this vision of sovereignty is too
convoluted to warrant extended recitation here—consisting as is does of
“traditional functions” and such inescapably vague terms.
In Garcia, of
course, the Court pitched this stuff out and elected instead to adopt a
process-based or “structural” definition of State sovereignty. It did so to
everyone’s, but especially liberals’, relief. States are entitled to
participate in the decisions of the federal sovereign, both by acting as a
federal agent—a Senator from a State, a signator to a compact, etc.—and as a
lobbyist or advocate able to persuade, or threaten, other federal actors. The
States, in a word, are part of the federal sovereign. The idea we’re
grasping at is somewhat like the idea of one’s forming a partnership with a
corporation owned entirely by oneself. This is a bit strange, or at least a
bit at odds with a view of States and the federal government as separate sovereigns, since one sovereign (federal) consists in part of the other. It is
hard to think of superior and subordinate relationships when the States are
both subordinate and superior. But that is an argument against the rhetoric of
dominance and antagonism more than it is a principled critique of the complex
conception of sovereignty at work in Garcia.
Garcia is strange from a purely ideological perspective,
because it assigns decision-making power to federal and State governments by
setting up “rules of the game” for a competition. At the same time it muddles
the true identity of the prevailing sovereign because the subordinate or
“other” sovereign (the State) is itself a part of the federal sovereign. Can
it be that in this sense the “true” or pure independent sovereign is the
State? Perhaps. But Garcia, it seems, is more than a decision that
lays the procedural ground rules for conflict or cooperation. It recognizes
the federal sovereign as unique, truly dual in itself, and therefore not
limited by substantive areas of authority. Its acts are the acts of the State
sovereigns—the acts of the United States.
There are other aspects
of the intergovernmental immunity question, however, and it is not altogether
clear that they follow the same patterns. First, there is immunity from suit:
the Eleventh Amendment and all the variations of the theme. When can one
sovereign bring another to heel under its law, privately enforced; or in the
second sovereign’s own courts; or even by the first sovereign in its courts?
In relation to the States, the answers to these questions, if we take them to
lie in the nature of sovereignty, seem all and ultimately to rest on dignitary
interests: the indignity of a State being held liable to individuals in the
courts of the other sovereign; the indignity of a State being subjected to
paying damages assessed under the law of the other, federal sovereign, even (or
especially) in the State’s own courts. Forced self-flagellation, that. If one
runs these ideas out to their logical extremes, one can claim that the State
sovereign should not be subject to suit enforcing federal law against it even
if the plaintiff is the federal government itself.
Being subject to regulation by the federal government is one thing; being
forced to comply in court is another. The indignity of it all!
The immunity works the
other way, too, both at the judicial/jurisdictional and the regulatory (and
taxing) level. But my sense is that the basic reason for this lies elsewhere
than dignity. It lies instead in power and supremacy. There is no doubt that
when the federal government acts within its power, it acts as a whole that
excludes anything else, particularly regulation at the hands of the States.
The Supremacy Clause doesn’t provide much explanation. After a brief foray or
two into the language of reciprocity (States can’t tax the federal government
and likewise the federal government can’t tax the States—even State employees
at one point), all
pretense of reciprocity fell away, and the immunities rule became the Supremacy
Clause writ large. As
with preemption, States have no power to tax the federal government or its instrumentalities,
but the federal government can, if it chooses, tax the States and their
So in this area of
immunities, sovereignty talk whirls around the States. But it must be a
strange kind of sovereignty: very limited in reach in view of the Supremacy
Clause and very specific in its definition of sovereignty. There is some talk
in the cases about sovereign dignity as the justification of state immunity.
Is this the explanation for all of the “dignity” and “respect” talk? I think
States deserve respect as governments—and fear, too—as do all governments.
Other governments should deal with the States carefully. I dislike self-flagellation,
compelled or not. But even with all of that, I fail to see where the idea that
dignity is the theme tying all of these things together came from, and what
dignity has to do, really, with a government that should be obeyed because it
has power, and feared for that reason too. Dignity may be part of the myth of
royalty, but States are there to serve us, to respect us, not the
other way around. There may be really good reasons for limiting suits against
States, but I don’t see them as related to dignity or even to sovereignty, as
opposed to practical governance and public policy. Under this view, the
Eleventh Amendment emanates no penumbras, but just plain words that must be
obeyed, and no more.
Let me add a final
word, or perhaps a final nail in the coffin, for “dignity” under the Eleventh
Amendment. Think of Ex Parte Young. When
the States violate federal law, don’t sue them directly for money damages.
Instead sue the State officers, in their official capacity for equitable
relief, and in their private capacity for money damages. This hardly comports with the State’s “dignity,” and indeed it is
arguably a greater indignity to bring a State’s governor or legislators, for
example, to answer personally for choices made (and, it should be noted,
protected by eloquently waxed language in Usery)
on behalf of the State. The State, after all, is but the collection of people
and their choices in governance at any point in time.
Another more recent
version of intergovernmental immunities is the “commandeering” rule: the
federal government cannot employ the State coercively as its agent to
formulate, enforce, or adjudicate federal policy (except, with adjudication,
for the Supremacy Clause).
Commandeering is Garcia-like: non-substantive and wholly procedural or
structural, “Cross the line and you’re out.” But it is not a rules of
negotiation or participation doctrine, as Garcia seems to be. It is
instead a line in the sand. There is no balancing of State and federal or
public interests here. It
is, rather, a formal rule with a winner declared if the rules are violated.
Indeed (and evocatively), it is not even clear that a State can agree to be
commandeered, for the vice is the federal government’s misbehavior in making
policy without the stomach actually to confess to it and carry it out. What’s
going on here? Is it indignity visited on the State, or is it punishment
visited on the federal government for overreaching? Is it the presence of
State sovereignty or the absence of federal sovereignty? If it’s the former
we’re back in the land of kings and dignity as the meaning of sovereignty. If
the latter we are in the rules-laid-down territory: sovereignty means simply
what one can and cannot do, and has no larger meaning.
A: I agree that
defining sovereignty by referring to dignity isn’t of much help. It is, as you
suggest, at some level about rules. What else would a legal concept of
sovereignty be? Actually, Daniel Farber’s book, Lincoln’s Constitution,
helpfully explores the question of federal/State sovereignty in its connection
to secession and the Civil War. He
contends that there are at least three persistent variations on the theme of
State sovereignty: (1) President Abraham Lincoln’s and Senator Daniel
Webster’s strongly nationalistic view that the union was created the very
instant “we, the people” of the united colonies declared ourselves to be
independent of the King of Great Britain, and that an undivided American people
collectively ratified the present Constitution and created a fully sovereign
national government; (2) a moderated, transformative view, under which the
whole people created a government sovereign for some purposes but not for
others—the States were connected for certain purposes prior to 1789, but
retained their separate identities, which persisted in some form after
ratification, and which persist weakly to this day; and (3) Senator John C.
Calhoun’s strongly decentralized view that the States retained their full
sovereignty after ratification because the Constitution was ratified by the
people in their capacities as citizens of particular States; there is no
undifferentiated American people and the States retain enormous constitutional
significance as States.
Fair enough. Farber
argues that “each of the three positions regarding sovereignty can find some
support in the historical record.”
“[T]he ambiguity of the historical record is more of a problem for staunch
States’ rights advocates like Jefferson and Calhoun than for nationalists like
Hamilton and Lincoln.”
Why? The “sweeping powers” of the government under the Constitution of 1789.
States’ rights advocates have to argue uphill. Be that as it may, Jacksonian
Democrats still “succeeded in paring federal activities to a bare minimum.”
Thus, there is a political dimension to sovereignty talk. Or, in our parlance,
a substantive dimension. “In practical terms,” Farber claims, “the key issue
was not sovereignty but power.”
And that’s it, isn’t
it? It’s not that sovereignty is metaphysical. So is God’s existence, but
surely that’s an important question. It’s that sovereignty and its locus have political importance. The federalist view was expressed strongly in Marbury and McCulloch. Lots of pretty phrases about “we, the people” and
the majesty of the Constitution. But
I also have the sense that State sovereignty can be discussed with alternative
political tropes, as an expression of a certain kind of democracy. In many
ways, the federal government is not especially democratic—indeed,
in Garcia the Supreme Court cites the undemocratic features of
the federal Constitution, the Senate, the Electoral College, and the like, to
proclaim that the federal political process adequately protects the States.
The federal Constitution structures the legislative process so that federal
politicians must cater to geographic and economic interests.
The States, by
contrast, have a kind of democratic flavor. “Dignity” talk casts the State
legislatures as democratic in roughly the same way that parliamentary systems
are supposed to be democratic—purely majoritarian. The concept of
representation at work is quite literal—it is what Hannah Pitkin called
“descriptive representation.” The
State government literally resembles the people, as the image in a mirror
resembles a person.
Thus, the dignity is the dignity of the very people. No sophisticated layers
of federalism, no Byzantine separation of powers, just majoritarianism. Thus
the literal indignity that, for some conservatives, is heaped upon the
people by the Supreme Court’s decision to strike down a law in the name of
individual rights. Controversial individual rights cases like Locke v.
Davey and Lawrence v. Texas are
federalism decisions every bit as much as Printz and Garcia, in
the sense that in those cases the Supreme Court decides whether to impose
federal constraints on State-level majoritarian decision-making. Thus my
fascination with Justice Chase’s ruminations in Calder v. Bull on the
nature of republican government. 
Justice Chase rejected
what the partisans of State dignity embrace: the idea that State government
simply is majority rule in areas without federal preemption. That is
emphatically what the federal government is not. One can State the matter in
reverse: are State governments bounded by enumeration, cabined by
constitutional restrictions, and subject to federal imposition? Should they
are they like imperfect Parliaments, with defeasibly complete legal supremacy?
My own thinking is that Justice Chase shouldn’t be cast aside. His opinion in Calder is written in the language of the great constitutional cases: Brown v.
Board, Griswold v. Connecticut, Eisenstadt v. Baird, Cohen
v. California, Roe v. Wade, Texas v. Johnson, Planned
Parenthood v. Casey, and Lawrence v. Texas.
I think we should take Professor Randy Barnett’s arguments against theoretically unlimited or conceptually broad police powers seriously,
regardless of whether we accept them.
doesn’t compel the holdings of many (if any) of the federalism cases, but it is an animating value. Perhaps it provides a motivation to read federal
power narrowly because, given the extreme importance of vox populi, the
framers and the ratifying population would never have wanted enumerated powers
to extend to this or that area. The dignitary concept of
federalism is defined vaguely, that’s almost the point. The vague rhetoric
doesn’t control the growth of legal doctrine. Rather, it informs pedestrian
forms of legal analysis. In a certain light, the logic of the Eleventh
Amendment cases works exactly like the logic of the Commerce Clause cases:
enumeration controls in one area, and the Eleventh Amendment’s gloss on Article
III controls in the other. The Supreme Court’s federalism is one of form, not
That said, I don’t know
what to make of Printz. I suspect, however, that you’re right. To me,
the case seems to be more about congressional overreaching than it is about
abstract State sovereignty. For that reason, Printz seems to me to be
an aberration—judicial regulation of congressional hubris at the outer edges of
generally plenary federal commerce power. The core problem seems to me to be
much larger—what is it around which Printz orbits? The rationale behind Garcia and Justice Blackmun’s rules-of-the-game approach is almost as
much of a moving target as sovereignty. It seems to me that the teaching of Garcia is that the presence of the States in the federal decision-making process
insulates federal decisions from charges of tyranny, or heavy-handedness, in
the administration of (assumedly legitimate) federal powers. This plays on
themes of procedural justice. It’s
almost consideration or unconscionability. Congress can’t get more than it
I think we’re approaching
a kind of general theory of federalism. Perhaps we can even explain the votes
of a moderately conservative Justice, such as Justice Kennedy. We can
reimagine Lopez, Morrison, New York v. United States, and Printz, as cases in which Congress got more than it bargained
for. We can reimagine Garcia, Term Limits, and (perhaps) Raich as cases in which it did not. And to the extent I am troubled by Raich,
it’s because I doubt that if Congress had to reenact the Controlled Substances
Act today, it could do so without granting an exemption for intrastate medical
marijuana use. If the prohibition survives solely by inertia, without any
input from the people in democratic fora—State or federal—then something
has gone wrong.
IV. Plain Talk: Congress’s Duty to Speak for the
But I assume that you’re not proposing a doctrine to rival the Court’s holding
in Raich. It’s hard to see what that would be. Rather, I take it
you’re expressing discomfort with Congress’s exercise of its power rather than
its existence—it’s almost like you’re saying something about the values
implicit in the Presentment Clause. I
gather from what you’re saying that you approve of sunset provisions. When
something’s in doubt, put it up for a vote.
I think there are cases
that support what you’re saying in the federalism context. There’s the clear
statement rule of Gregory v. Ashcroft.
The same is true of the similar rules of Edelman v. Jordan and Atascadero
State Hospital v. Scanlon. Also
think about the recent decision in Gonzales v. Oregon.
Technically, it’s about administrative law. In 2001, Attorney General John
Ashcroft promulgated a regulation stating that prescribing certain Schedule II
controlled substances for the purpose of assisting a terminally ill patient to
end his or her life is not a “legitimate medical purpose” within the meaning of
the detailed federal statutes and regulations that permit licensed physicians
to prescribe controlled substances. Oregon’s Death With Dignity Act was enacted by a voter initiative in 1994.
It prescribes certain procedures under which Oregon physicians may lawfully
distribute or prescribe, but not administer, the same drugs.
Justice Kennedy’s opinion for the Court refused to show deference to the
Attorney General’s interpretation of the Controlled Substances Act or
pre-existing federal regulations, but
also addressed the substance of the Attorney General’s interpretation of the
Justice Kennedy stated
unequivocally that Congress could preempt Oregon’s law, but argued that the Controlled Substances Act “manifests no intent to regulate
the practice of medicine generally.”
Better still, Justice Kennedy stated:
as the conventions of expression indicate that Congress is unlikely to alter a
statute’s obvious scope and division of authority through muffled hints, the
background principles of our federal system also belie the notion that Congress
would use such an obscure grant of authority to regulate areas traditionally
supervised by the State’s police power. It is unnecessary even to consider the
application of clear statement requirements, [citations omitted] or
presumptions against preemption, [citations omitted] to reach this commonsense
It’s hard to pin down
what this means. The Ninth Circuit cited Gregory to impose a clear
statement requirement on the Attorney General.
And it’s also worth noting that at one point “[l]egislation was … introduced to
grant the explicit authority” that Attorneys General Ashcroft and Gonzales asserted
against Oregon, “but it failed to pass.”
What does Oregon mean? It’s impossible to say with any precision. But it seems that
something like your discomfort with politicians’ free riding off of
pre-existing preemption is alive and well on the Court.
A: You raise an
excellent point. But the result wasn’t the same in the Supreme Court’s recent
decision in the internet winery case, Granholm v. Heald, where the
Supreme Court struck down State winery regulations under the dormant Commerce
law preempted State law without Congress having to make any statement,
much less a plain one. Justice Kennedy wrote the opinion in that case, too.
I’ll grant that the Commerce Clause plainly puts some limits on the
States’ police powers. And these core limits should be enforced whether
Congress speaks to the issue or not. But this is really a very narrow category
of cases—State action inconsistent with the existence of the Commerce Clause.
Perhaps even the union more generally. Indeed, something like this principle
has been affirmed in other areas of the law—most dramatically when the Supreme
Court struck down California’s “anti-Okie” law in Edwards v. California.
A discriminatory rule
against interstate migration presents an easy case. The harder questions are
of degree and extent—where to draw the line in the average Commerce Clause
case. I suspect that here, too, the answer lies in Garcia. In most
cases, Garcia should put the burden on Congress to legislate if it wants
to preempt unwise State regulation. Indeed, Justice Blackmun’s opinion in Maine
v. Taylor is
very much in this vein. In Taylor, the Supreme Court upheld an outright
ban on the importation of live, out-of-State baitfish in Maine; Justice
Blackmun’s opinion for the Court rested largely on the theory that Maine had
legitimate concerns about the potential for foreign fish to introduce
previously unknown diseases and parasites into Maine’s domestic stock.
“Not all intentional barriers to interstate trade”, he argued, “are
protectionist … and the Commerce Clause ‘is not a guaranty of the right to
import into a State whatever one may please, absent a prohibition by
Congress, regardless of the effects of the importation upon the local
That’s the key, isn’t it? Surely the State’s interest matters, but there’s a
structural point to be made. Congress unquestionably could defeat Maine’s ban, but until Congress legislates Maine “retains its broad regulatory authority to
protect the health and safety of its citizens and the integrity of its natural
if Congress wants to displace Maine’s environmental policy, it should put it up
for a vote. 
Justice Stevens, very
much in the mode of muddying sovereignty, dissented in Maine v. Taylor.
Though he disclaimed any motive “to derogate the State's interest in ecological
purity,” he argued that “the State … should be put to its proof,” and “the
invocation of environmental protection or public health has never been thought
to confer some kind of special dispensation from the general principle of
nondiscrimination in interstate commerce.” That
is consistent with our reading of Raich.
So while I
must confess that personally my sympathies lie with the winery owners in Granholm,
it’s clear to me that the Supreme Court’s holding in that case takes the
pressure off Congress to hold a vote on winery regulation. In fact, the
decision exercises federal power in a fairly opaque way. Congress actually has to authorize a State to enact laws that intentionally discriminate against out-of-State
commerce, unless the State asserts a powerful interest.
And when Congress actually wants to preempt such laws, it gets to do so
for free. 
debating strategy. Garcia was one of Justice Blackmun’s best opinions,
and has much significance here, for it reinforces the fact that Congress has
the exclusive Commerce Power and the States can participate in its exercise.
But Justice Blackmun was but one Justice, and he is, sadly, no longer on the
Court. So, my question to you is: does the Gonzales v. Oregon and Maine
v. Taylor theory of federalism have any life in it on the modern Supreme
Court? Granted, Chief Justice Roberts and Justice Alito may be blank slates in
this regard. But aside from undisciplined tealeaf reading about the larger
story of Gonzales v. Oregon, can we learn anything from the other
A: Well, there’s
Justice Thomas. He concurred in the judgment in the recent American
Trucking Associations case, where the Supreme Court upheld a $100 fee Michigan levies on intrastate commercial trucking. He
argued that “‘[t]he negative Commerce Clause has no basis in the text of the
Constitution, makes little sense, and has proved virtually unworkable in
application,’ ... and, consequently, cannot serve as a basis for
striking down a State statute.”
Justice Scalia is somewhat more restrained. He concurred In West Lynn
Creamery v. Healy, where the Supreme Court struck down a
Massachusetts program under which the State collected mandatory fees from all
sellers of milk in Massachusetts (some of whom were not from Massachusetts) for
a fund to be distributed to all producers of milk in Massachusetts (all of whom
were from Massachusetts).
Justice Scalia conceded that the Commerce Clause was written “to create a
national market,” but he argued that “[i]t does not follow from that … that
every State law which obstructs a national market violates the Commerce
Clause. Yet that is what the Court says [in Healy],” and “ … this
expansive view of the Commerce Clause calls into question a wide variety of
State laws that have hitherto been thought permissible,” including purely
Justice Scalia therefore announced that he “will, on stare decisis grounds, enforce a self-executing ‘negative’ Commerce Clause in two
situations: (1) against a State law that facially discriminates against
interstate commerce, and (2) against a State law that is indistinguishable from
a type of law previously held unconstitutional by this Court.” And thus Scalia strives to “produce a clear rule
that honors the holdings of our past decisions but declines to extend the
rationale that produced those decisions any further.”
Scalia and Thomas haven’t embraced our broad, vague, and mushy preference for
clear statements. But there’s something attractive about the transparency
involved in their arguments, isn’t there? When you think about this position
alongside his Raich concurrence, Justice Scalia is consistent—he rejects
a broad dormant Commerce Clause and embraces a theoretically robust (and
doctrinally sound) view of Commerce Clause power. I also think that Justice
Kennedy wins a prize for consistency—he has somewhat consistently elaborated
his views on divided sovereignty.
One could argue that
Congress’s power affirmatively to regulate national life through Article
I, section 8 may be distinguished from, and should receive different treatment
than, Congress’s power under the same Clause negatively to displace
obnoxious State regulations. This seems to me, however, to be a distinction
without a difference. To justify such an assumption, one must assume that
Congress is simply not to be trusted with economic stewardship of the nation, or that somehow Article I, section 8 is a grant of power to the Supreme Court
rather than to Congress.
B: Maybe. I’m
troubled, though. It’s almost like we have dueling default rules in the
opinions. Perhaps we can State the problem as follows: unless the
self-executing Commerce Clause is a default rule to which Congress has to give
special exceptions (Justices Scalia and Thomas reject the principle outright,
and surely Justice Stevens doesn’t mean to embrace it), there has to be a
mechanism for resolving conflicts. But it doesn’t appear that Stevens has one,
aside from the somewhat unhelpful proposition that the presumption must be
toward the invalidity of discriminatory regulation. But transparency aside, I
think the same goes for the conservatives. They adopt the opposite default
rule. This isn’t very helpful because when there is no discrimination
on the face a State statute (where the Pike v. Bruce Church balancing
test applies), the
question of the police power is not squarely presented. The Pike test is deferential to the States. But where the law is discriminatory, the State is
asserting one of its sovereign powers. There’s a conflict here that has to be
resolved somehow. And I hope there’s more to ask than whether the State
interest is important and whether it can be served by nondiscriminatory means.
Before we move on, let
me try to get to the bottom of these issues. First, let me try to restate
briefly your analysis and interpretation, with some extrapolation of my own,
perhaps. Negative Commerce Clause doctrine is incoherent in many settings,
especially beyond discrimination against interstate commerce. And, more
importantly, it lacks textual or theoretical justification in the
Constitution. It doesn’t explain why State regulations that
discriminate against or interfere with the national market should be
unconstitutional, either in terms of the States’ governing authority (I prefer
that to “sovereignty”, which I deem a pretty useless term) or in terms of Congress’s exclusive and enumerated power. The effect of broad judicial intervention is
to cut Congress, the power-holder, out of the circle. And this is justified
partly on the ground that Congress (these days) is not in a position to act.
But Courts can.
In the abstract, at
least, this is a remarkable and structurally destructive tautology. An
alternative view, voiced in our exchange by Justice Blackmun, shifts the
presumption of unconstitutionality in cases involving (here I generalize the
view, which rests heavily on the environmental interests of States) a State’s
political actions designed to protect the health and welfare interests of its
citizens even if the effect of such actions interferes with the national market
and/or disproportionately burdens interstate commerce. In such cases the State
is exercising its police power—governing in the health and welfare interests of
its population—which it is entitled to, and indeed must, do under the federal
system established by the Constitution—de facto, not de jure.
Judicial preemption of
such State regulations is unjustified for many possible reasons: (a) because
the Judicial Branch does not have such broad Commerce Power; (b) because in
doing so it invades the State’s sovereignty, dignity, or, as I prefer,
its practically essential governing power; (c) because judges don’t have the
knowledge or capacity to decide such “interference” questions and weigh the
State’s policies (or even ascertain them); or (d) because it cuts the federal
legislative process out, making political compromises and settlements unlikely
because the Court has already settled the matter.
It is the last point
that’s most interesting. Garcia suggests that negative Commerce Clause
doctrine is not only cutting Congress out, but preempting a structural and
valuable element of the Constitutional system that safeguards State interests.
To state our point briefly: the States’ structural protections—opportunities
for individual or collective defense of their interests in the Constitutional
scheme—require legislative action at the federal level, accompanied by
the procedural and substantive protections of States in that process
(bicameralism, nondelegation, limits on federal administrative action, presentment, representation in the Senate for States, and
the like). If the judicial branch would stay out of most negative implications
conflicts, the issues presented by State regulation could, if deemed
important to federal interests, be taken up and negotiated with the States’
participation in the House and Senate and the White House, the Constitutional loci of the power to regulate commerce among the States.
I find this view much
more satisfying than appeals to “federalism” or “sovereignty.” It seems that
every Justice has his or her own definition or intuition about federalism, from
very little (Stevens, Ginsburg) to some (Kennedy, O’Connor) to everything
(Thomas), with others lurking in the cracks. And I like your view’s location
in Garcia and the structural and procedural, rather than the
substantive, language of Constitutional doctrine.
But questions abound.
What is the counterpoint, if any, in Commerce Clause doctrine, to such a
structural understanding from negative Commerce Clause doctrine? Here are some
thoughts. In Commerce Clause doctrine, enumeration is the limit. This is
consistent with what we’ve been calling the enumerated powers model of
federalism. But the independent state model has always found its way into the
analysis because enumeration-based formulaic limits, by themselves, can’t stand
without a background to explain them and to give them life—presently, that
background seems to be a vague, weak but genuinely substantive sense that there
should be some limit to federal power. One
answer is that Garcia is the limit here, too: process alone is the key,
and as long as Congress follows the prescribed process (with its implications
for cutting back on delegation, restricting executive lawmaking power, etc.),
it can do what it wants. Indeed, Justice Souter made this very argument in Morrison,
rooting his analysis in Garcia and the Seventeenth Amendment.
Yet that seems a bit unsatisfying and incomplete. As Chief Justice Rehnquist
noted, the Congress is not a Parliament. But
without resort to “federalism” and “sovereignty,” there are alternative and
narrower substantive limits: the words “commerce” and “among the States.” As
to these things, the Judicial Branch can perhaps justify its judicial review
power—a substantive terms-defining power, but not broader “federalism-” and
“sovereignty-” based creative power. Raich seems very much to respect
such a distinction, even if its holding isn’t clear on the face of the Court’s
Is the presence of such
limited judicial power in the Commerce Clause setting the counterpart to the
“discrimination” line-drawing power exercised by the Court, and accepted by
Scalia, in the negative commerce cases? Perhaps so. Such a view clearly makes
some sense. But if so, what does the permissible reach of judicially-enforced
negative Commerce Clause limits consists of? It surely can’t consist of
“federalism,” or all is lost in the symmetrical analysis. And I doubt that it
can consist of a definition of the “police power,” which really defies
definition and in any event is not stated or conferred in the Constitution.
Here’s a thought.
Instead of police power (or perhaps in recognition, but not
constitutionalization, of it) the limit of State power is that a State may not exercise the commerce power in Article I, section 8, because the commerce power is
exclusive. That’s the flip side of what Chief Justice Marshall said in the
passage you’ve quoted from Gibbons. When can it be said that the
State is exercising the commerce power? Certainly not in the instance you draw
from Taylor. There, commerce is affected, even changed, but the aim of
the law or regulation is purely local and undoubtedly a bona fide exercise of the State’s governing (police) power. This is so even if the
regulation overtly discriminates against out of State commerce. But some
regulations discriminate against out of State commerce with no other possible
interest than giving State interests a commercial advantage over out of State
interests; economic protectionism, in itself, is the means employed to achieve
other putative interests which themselves are commercial—the milk cases versus
quarantines to protect livestock from disease.
Such laws are unconstitutional unless Congress expressly adopts them as its
I’m not certain that
this works as an explanation of the cases, but if it or some variant of the
idea does work, it can set the boundary between valid and invalid State laws at
the (judicially manageable) definitional level of whether the State is
exercising the exclusive commerce power, rather than make it turn on whether
federalism or sovereignty interests have been violated or insensitively
balanced. The federalism and sovereignty interests, instead, have been
reflected in the balance struck in the Commerce Clause, as we have similarly
suggested for the commerce power itself. More broadly we might posit that the sovereignty
or federalism interests in much (all?) of the Constitution have been already
balanced in the structural protections surrounding the exercise of federal
power, as in Garcia.
So much for federalism
at large; there is no “brooding omnipresence in the sky.”
Federal supremacy means federal supremacy, not some larger theory of
dual sovereignty that might, in a better world, prohibit commandeering and
unfunded mandates. What are the implications of our emerging, largely
practical and non-ideological, approach to “federalism” and “sovereignty”
concepts in the Constitution? It seems to me that (1) the methodologies
employed by both camps in the Term Limits opinion were erroneous, as no
overarching principles about the source of power can or should be divined, must
less applied, in the Constitution or its history (and, it may be added, neither
overarching principle really resolved the issue in the case, which would be
better addressed by text and history at the retail level); and (2) the operable
conception of the Constitutional system was a mélange of varying ideas and
practical realities and known uncertainties that lay ahead, borne by, I
suspect, a deep suspicion of “pure” theory, as acted out in the French
Federalism is an
interpretive device, but not a freestanding one. Of the two models with which
we began this exchange, we’re closer to the enumerated powers model but we’re
not entirely divorced from the spirit of the independent state model. We’ve
seen that substantive theories of federalism and sovereignty have little
explanatory force when we approach the document at any significant level of
specificity. You keep reiterating your adherence to a complex, multilayered
theory of sovereignty, but in law a theory of sovereignty that refers to
everything governs nothing. Vague sovereignty has no specific meaning, except
in one sense. It pushes us to see the Constitution is a rules-of-the-game
document, a practical guide to representative government in a layered, federal,
system produced by a political consensus that had pre-digested the varying
strands of intellectual thought at the time. It is not a script intended to
evoke and enliven judicial resort to larger political or philosophical ideas
such as “federalism” or “sovereignty.”
We need to think about
the implications of generalizing this approach. Its value (as well as risk)
would be experimentation (part of O’Connor’s tetherless federalism in Raich);
its justification, as with the Commerce Clause, would be enumeration and what it
implies—the necessary resort to the structured political process to work out
solutions if they are deemed necessary at the federal level.
A: Well, let’s
not be too hasty. Maybe we can take another look at the idea of the union. It
seems to matter to the Justices – especially Justice Kennedy. In Granholm,
Justice Kennedy put forward the odd assertion that the prohibition on outright
interstate discrimination “is essential to the foundations of the Union. The mere fact of nonresidence should not foreclose a producer in one State from
access to markets in other States.”
Rhetoric about the union is a commonplace in the dormant Commerce Clause cases.
But the rhetoric of union must be the beginning rather than the end of the
inquiry. Obviously, some federally-imposed limitations on State regulatory
powers are logically essential to the existence of the union. The Supreme
Court can surely enforce sweeping preemption of State action without Congress’s
approval if the alternative is political collapse and economic and military
ruin—the very reasons for the Constitution’s existence.
But except for prohibitions on State-imposed barriers to interstate travel and
negotiation of treaties and trade agreements with other States or with foreign
nations, nullification and interposition, secession, and
the like, that principle doesn’t compel many specific limitations on the
Let me recast the
question—we’re defining State regulatory authority in the shadow of federal
power. We’re looking for a definition of the police power, which can be
thought of as the sum total of State regulatory powers left over after their
abrogation by self-executing constitutional provisions and constitutionally
enacted federal statutes. Chief Justice Taney defined this constellation of
powers in the language of territorial sovereignty in Thurlow v.
But what are the
police powers of a State? They are nothing more or less than the powers of
government inherent in each sovereignty to the extent of its dominions. [It
is] … the power to govern men and things within the limits of its dominion. It
is by virtue of this power that it legislates; and its authority to make
regulations of commerce is as absolute as its power to pass health laws, except
in so far as it has been restricted by the constitution of the United States. 
But this is deeply
question-begging. The real question is how tightly the Constitution
“restrict[s]” the powers of the States. According to Chief Justice Taney “it
necessarily follows that the grant of power to the federal government is not an
absolute and entire prohibition to the States, but merely confers upon Congress
the superior and controlling power.” But
this is to state the same problem in different words. The scope of the
“superior and controlling power” and the question whether it should be
politically or judicially enforced are the key questions.
We’ve really got to
think about what it means to have concurrent powers and dual sovereignty. The
idea of concurrent powers is certainly familiar. The Supreme Court has seen
regulatory powers over commerce as inherently concurrent since the 1820s; Gibbons
v. Ogden made the point in reference to concurrent State and federal powers
of taxation, concluding that no logical or legal paradox emerges by the
concession that both the States and the union can tax (and tax heavily) the
same activity. Chief Justice Marshall suggested that this issue emerges from the very
form of our government:
In our complex system,
presenting the rare and difficult scheme of one general government, whose
action extends over the whole, but which possesses only certain enumerated
powers; and of numerous State governments, which retain and exercise all powers
not delegated to the Union, contests respecting power must arise. Were it even
otherwise, the measures taken by the respective governments to execute their
acknowledged powers, would often be of the same description, and might,
sometimes, interfere. This, however, does not prove that the one is
exercising, or has a right to exercise, the powers of the other.
It’s the last sentence
that’s key. I think the implicit suggestion is that State and federal power
should be analyzed as distinct phenomena. As we have said several times, the
separate governments’ powers are, and should remain, conceptually separate.
State and federal powers do not flow from the same source. The zenith of one
is not the nadir of the other.
But if that’s true then
many things follow. First, something more than a definition is needed to show
that the police power is necessarily unlimited outside the area of federal
preemption. Second, the Blackmun-esque view of complex and layered
sovereignty, as in Garcia, with many actors speaking in different voices
at different times, and/or the Kennedy-esque view of dual sovereignty, with
State and federal actors each taking different and overlapping parts of the
original powers delegated by “we, the people,” become much more attractive.
B: I find your
subtle suggestion of accommodation even in the preemption setting to be very
interesting, and certainly of a piece with the larger idea. In the Oregon case, however, we needn’t go so far. The federal Controlled Substances Act
exempts use of the otherwise prohibited or regulated drugs if they are sold or
administered pursuant to a physician’s prescription for treatment that meets
reasonable medical standards. The Oregon law does not violate the act, Oregon argued, because Oregon has passed a law that
alters the licensing and medical practice standards set, traditionally and
today, by the states. The
federal government’s argument was that the new medical standards set by Oregon
do not satisfy the Controlled Substances Act, not because the act specifically
outlaws assisted suicide by doctor and patient at the very end of life, but
because the federal government has some general authority via the Attorney
General to decide whether medical standards in states are acceptable in light
of the law-enforcement purposes of the Act. This
is a general, and largely administrative and law enforcement authority.
It is not an express federal power going to the specific drug(s) used in
specific ways authorized under the Oregon law. This makes the case different from Raich because there were no exceptions of this kind for the sale of
marijuana and the California law in any event didn’t limit itself to defining
the scope of the practice of medicine.
Thus Gonzales is
much closer to the pure negative implications cases, and so Oregon can make the
more straightforward negative implications-type argument on behalf of state
legislative power in the absence of congressional action under Art. I,
section 8. This is an argument that would be greatly strengthened by a
recognized claim that when a state acts within its traditional police powers
and in the absence of economically protectionist discrimination against
interstate commerce, the national market interests and solutions rest not with
courts, but with Congress and the President exercising legislative powers under
Articles I and II.
A: I think you
give us too little credit. While decided on grounds of deference (lack of it,
actually) to the Attorney General's rulemaking power under federal law, the Gonzales decision rests on an expressed background of traditional state lawmaking, and
by disallowing the Attorney General’s power under the federal law it puts the
matter back into Congress’s lap where the States can launch a full and fair
fight under the Garcia principles.
B: If that is
true, then it seems, as a general matter, that we have settled on something
very practical. We see “federalism” not as a theory and legal doctrine, but
instead as a set of obstacles in the field of government power. To stretch the
sports metaphor, these posts and barriers prevent any of the contestants from
running the field, and serve as brakes or required resting points at which the
contestants must count to ten and think carefully about what they are doing.
The hope is to slow the brutality and engender, to the extent possible,
cooperation and compromise and constructive competition.
So there is no grand
Constitutional federalism that stands as an unbreachable chasm between state
and federal power. There is, really, no schematic of “sovereignty” that can be
usefully drawn upon. In a very American way, I think, sovereignty was quite
decisively dispensed with as a term used, much less enforced, in the internal
governance and affairs of the nation. The nation was sovereign among nations,
but not within itself. This would mean, of course (if we are right), that the
Supreme Court has profoundly miscalculated the nature of the Constitution’s
structural design. There is no “brooding omnipresence.”
There is no Grand Architect and no controlling philosophy. There is instead an
imperfect and therefore malleable, immensely practical, and basically
non-theoretical set of rules with which to govern a republic committed to
democratic participation and the powerful idea of freedom and personal
liberty. No absolutes. No precincts of unreviewable power. No corners free
of healthy competition. Nothing too tidy.
In terms of the
instances of “federalism” upon which the Supreme Court has lately focused its
attention, what have we? We have a clear governing rule of enumeration at the
federal level, which many say has served as a means of aggrandizement of
federal power through the commerce and spending powers.
But we find no mention of “federalism” in Article I, section 8. No high
theory. Instead we find an untidy and imperfect set of enumerated powers which
necessarily change over time—in degree but not in kind.
McCulloch v. Maryland,
with its reading of enumeration and the Necessary and Proper Clause, is not
easily confined. There is nothing wrong with the Supreme Court trying to tweak
it and shore it up, as in Lopez and Morrison. But the bludgeon
of federalism, of separate and sealed “fields” of authority for the federal
government and for the states, simply won’t do. It can’t work, for the bread
of enumeration isn’t sliced along substantive lines. More importantly, it
isn’t what was put in the Constitution. Enumeration is a practical and very
important obstacle, a place to count to ten and give second thought. And a
place to make certain that the other structural brakes—the Garcia rules
of state participation, bicameralism, presentment, constrained delegation, and
the like—are fully and fairly in place.
The Court should see
other constitutional provisions and rules in a similar way. The Eleventh
Amendment, for example, shouldn’t be seen as a spare text engorged by
federalism and sovereignty. Sovereignty and its conceit, dignity, have no
place in the operative doctrines of the Constitution. Instead Article III’s
jurisdictional rules and the Eleventh Amendment’s limits should be seen as
practical instruments for protecting against the bankruptcy of government
itself and from the subjugation of one government by the threat of economic
ruin by the other. These are practical ideas that allow textual and practical
legal rules, and that allow a healthy measure of flexibility for future
adjustment (Ex Parte Young, for example)
if wielded by a reasoned hand in obedience to other structural rules of limited
judicial power or legislative process.
constitutional provisions deserve mention here. First, there are the
qualifications provisions of Article I, which were involved in the Term
Limits case. That
provision needn’t, and in our view shouldn’t, be seen as a font of sovereignty,
a term not used in the Constitution, borne at the creation. The remarkable
conceptual and historical exercises played out by, among others, Justices
Stevens and Thomas, are neither provable nor usefully operable in law. It
seems clear to us that the people of the states voted in their states to
express their agreement on the creation of a government of the people of the
Finally, a surprisingly
broad array of the federalism rules are non-textual, which is to say that they
are of the Court’s own creation. This is most obviously true of the
intergovernmental immunities doctrines, which have ebbed and flowed for over a
century. It is true also of the most recent arrival in the immunities family,
the commandeering rule prohibiting the federal government from using states as
lawmaking, enforcing, and judicial agents of federal will.
These sets of doctrines can be seen in two ways. The first, the Supreme
Court’s, looks at them as protections for the states’ dignity and sovereign
separateness. The second way of looking at the doctrines is that the Court,
extra-textually but perhaps for good reason, has created them as practically
necessary obstacles to aggrandizement. The latter is obviously our view.
Under that view there is nothing wrong with the Court’s creativity if the
rules allow for flexibility. If they were absolute they would then become
barriers in the name of state authority and not obstacles requiring occasions
for sober political reflection. The bright-line absolutism of the commandeering
doctrine, then, is misplaced.
The need for judicially
crafted practical obstacles flexibly enforced to accommodate the occasional
conflicts between the federal government and the States is, in its best sense,
reflected in the judiciary’s own rules of abstention and comity.
Abstention is, at base, a practical and functional set of rules by which a
state court’s greater ability to adjudicate certain local or complex regulatory
issues is taken advantage of, but not at the expense (as opposed to delay) of
opportunity for federal court jurisdiction over the federal issues. Comity
likewise respects states’ law enforcement powers as well as the Supremacy
Clause obligation imposed on state courts by the Constitution, by deferring
federal court review of federal claims until completion of the state criminal
prosecution, absent specific reasons to distrust the state court’s willingness
to obey federal law. But the comity doctrine is not textually compelled, as
opposed to textually informed. It is not fixed. It has expanded beyond
criminal prosecutions. And
it has exceptions built into it—occasions for calm reflection. It is thus of a
piece with the adjustments of federal and state claims of power occasioned by a
judicially-created obstacle, but not a barrier.
A last lesson, this one
a message to the judicial branch when exercising federal power, comes from the
negative implications cases. There we see that encroachment by judicial
supervision of state laws has effectively sheltered Congress from its
constitutional responsibility to enact legislation preserving a national
economy when it judges that local state laws serving local purposes have
excessively disrupted its own view of the desired national market. The Court
has (inadvertently it seems) sapped the marketplace of state experimentation
and has preempted Congress’ exclusive power to define what the market should
be. The Supreme Court is acting like the nation’s economist-in-chief, and
nothing in the text of the Constitution gives it the power to do so. Congress
has that power and responsibility, except in the rarest of cases that compel
judicial action. The power “[t]o regulate Commerce . . . among the States”
belongs, after all, to Congress.
So that’s where I see
us ending up. The Court has taken us on a misconceived and constitutionally
erroneous mission in the name of federalism and sovereignty. It should stop
spinning high theories of “federalism” and “sovereignty” that the Constitution
does not create. It should return to enforcing the obstacles set out in the
Constitution; to assuring the integrity of the structural processes for
exercise of federal power; and making the competing interests—the States and
Congress—count to ten and give sober second thought when an obstacle is approached.
Doing so will be more than enough to keep the Court plenty busy.
A: Is the
liberal view any more coherent than the conservative view? No.
One-directional constructs don’t tell us very much about how to interpret
specific language in the Constitution. And the moderate construct we’ve
discussed, Justice Kennedy’s insistence on speaking in terms of divided
sovereignty, is so vague that despite its essential accuracy, sometimes I think
it provides less practical advice than the alternatives. It’s not the Justices
fault. Federalism, sovereignty—it’s a slippery subject. In this area of the
law, there is a temptation to lose oneself in philosophical reflection.
I’m troubled by your
raising the abstention doctrines. I’ve never been the most enthusiastic fan of
abstention. Your point, however, is well-taken. The courts aren’t fora for
philosophical reflection. They’re places to resolve disputes. And if we’re
going to have two court systems with two bodies of law and separate spheres of
jurisdiction and supremacy, then we’ve got to have some mechanism for
commodiously moving cases from one system to the next, where each claim can be
presented and adjudicated in its proper way.
Perhaps this is the
final lesson of our engaging exchange. Divided sovereignty comes with its
price. The Constitution seems to ask us to accept that the federal legislature
partakes of a bewildering duality; that this is part of the framers’ design;
and that Congress will, in the long run, tend to get it right on most federalism
issues. The Bill of Rights charms us with its gripping political principles.
No great creative mind is needed to see the First Amendment at work. These
structural clauses of the Constitution, however, are works of artifice. They
are dry. They are technical. They do not speak in poetry to the moral
imagination. Instead, they are entirely practical provisions. While they are
designed to achieve important results—the lofty and elevated goals of the
preamble no less—they
are instrumental in achieving those results in ways that other constitutional
language is not. Perhaps the final lesson, then, is that one should never
forget that crucial fact.
 The authors would like to express their thanks to
Mark Schantz, William Buss, Todd Pettys, Tung Yin, Arthur Bondfield, Barry
Matsomoto, and Patricia Walsh, for their comments on earlier drafts of this
 In reality, this exchange began to
take shape in the summer of 2004, as an actual electronic dialogue between
Professor Bezanson and Mr. Moeller. After much work, we have transformed these
exchanges into the fictional dialogue that follows.
 U.S. Const. Art. I, § 8, cl. 3 (“The
Congress shall have Power ... [t]o regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes”); Gonzales v. Raich,
125 S.Ct. 2195 (2005); United States v. Morrison, 529 U.S. 598 (2000); United
States v. Lopez, 514 U.S. 549 (1995).
 See, e.g., Jesse Choper and John Yoo, The
Scope of the Commerce Clause After Morrison, 25 Okla. City U. L. Rev. 843 (Fall 2000); Vicki C. Jackson, Federalism
and the uses and Limits of Law: Printz and Principle?, 111 Harv. L. Rev. 2180 (1998); Bradford R.
Clark, Translating Federalism: A Structural Approach, 66 Geo. Wash. L. Rev. 1161 (1998); Ann
Althouse, Enforcing Federalism After United States v. Lopez, 38 Ariz. L. Rev. 793 (1996); Stephen
Gardbaum, Rethinking Constitutional Federalism, 74 Texas L. Rev. 795 (1996).
 Nat’l League of Cities v. Usery, 426 U.S. 833
(1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
 See, e.g., Younger v. Harris, 401 U.S. 37
 See U.S. Const. Art. VII (“The Ratifications of
the Conventions of nine States, shall be sufficient for the Establishment of
this Constitution between the States so ratifying the Same”).
 Usery, 426 U.S. at 833.
 Lopez, 514 U.S. at 560.
 Id.; see also Raich, 125 S.Ct. at 2215
(Scalia, J., concurring in the judgment).
 Raich, 125 S.Ct. at 2215 (Scalia, J., concurring in
the judgment). This variant on direct commerce power was explicitly
recognized in United States v. Darby, 312 U.S. 100 (1941), and has been
used in numerous cases since, e.g., United States v. Sullivan, 332 U.S.
689 (1948); Perez v. United States, 402 U.S. 146 (1971).
 Lopez, 514 U.S. at 560 (discussing the
absence of a jurisdictional element in the Gun Free School Zones Act provision
 Morrison, 529 U.S. at 614-15.
 Morrison, 529 U.S. at 615-616 (2000) (citing Lopez, 514 U.S. at 575-79 (Kennedy, J, concurring)).
 Morrison, 529 U.S. at 617.
 Id., 529 U.S. at 617-18 (citing NLRB v.
Jones & Laughlin Steel, 301 U.S. 1, 30 (1937)).
 Eric R. Claeys, The Living Commerce Clause:
Federalism in Progressive Political Theory and the Commerce Clause after Lopez
Morrison, 11 Wm. & Mary Bill of
Rts. J. 403, 429-42 (December 2002).
 NLRB v. Jones & Laughlin Steel, 301 U.S. 1 (1937).
 Claeys, 11 Wm.
& Mary Bill of Rts. J. at 429-30 (discussing The Shreveport Rate
Cases, 234 U.S. 342 (1914) (Hughes, J.); Carter v. Carter Coal Co.,
298 U.S. 238, 324 (Cardozo, J., dissenting); and NLRB v. Jones &
Laughlin, 301 U.S. 1 (1937)).
 Id., 11 Wm.
& Mary Bill of Rts. J. at 430.
 Raich, 125 S.Ct. at 2209.
 Raich, 125 S.Ct. at 2209.
 Cass Sunstein, Incompletely Theorized Agreements,
108 Harv. L. Rev. 1733 (May 1995)
(discussing the importance of agreement on conventions without agreement on
underlying theory, ideology, or philosophy).
 Iowa City, IA City Code, Title 6, Ch. 5, §§ 6-5-3 (“Nuclear Weapons Work Prohibited. No person shall knowingly engage in work within
the city, the purpose of which is the development, production, deployment,
launching, maintenance or storage of nuclear weapons or components of nuclear
weapons”) and 6-5-5 (making violation a “simple misdemeanor or municipal
infraction” and creating a private civil action in city residents to enforce
the provision), available at http://18.104.22.168/IA/Iowa%20City/index.htm (last accessed 6 January 2006).
 U.S. Const. Art I, § 8, cl. 1 (“The
Congress shall have Power To … provide for the common Defense ….”), cl. 11 (“…
[t]o raise and support Armies, but no Appropriation of Money to that use shall
be for a longer Term than two Years”), cl. 12 (“… [t]o provide and maintain a
Navy”), and cl. 13 (“… [t]o make Rules for the Government and Regulation of the
land and naval Forces”).
 See Raich, 125 S.Ct. at 2213 (“Just as
acquiescence to federal regulation cannot expand the bounds of the Commerce
Clause, [citation omitted], so too State action cannot circumscribe
Congress’[s] plenary commerce power [citation and footnote omitted]”).
 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 840 (Kennedy, J., concurring).
 See generally Akhil R. Amar America’s Constitution: A Biography 43-53
(Random House 2005) (arguing that the central motivations behind the
establishment of the Constitution of 1789 were deeply geopolitical—the need for
military and economic unity in the face of potential invasion or interference
by, and economic competition from, European imperial powers).
 Morrison, 529 U.S. at 616, n7 (citing and
quoting, in parenthetical, Marbury v. Madison, 1 Cranch (5 U.S.) 137, 176 (“The powers of the legislature are defined and limited; and that those
limits may not be mistaken, or forgotten, the constitution is written”)).
 Morrison, 529 U.S. at 610.
 See Oliver W. Holmes, Jr., “The Path of the
Law,” in Collected Legal Papers (1897).
 Morrison, 529 U.S. at 610-13 (elaborating
four factor test).
 Usery, 426 U.S. at 845 (“… there are attributes of sovereignty
attaching to every State government which may not be impaired by Congress, not
because Congress may lack an affirmative grant of legislative authority to
reach the matter, but because the Constitution prohibits it from exercising
the authority in that manner) (emphasis added); Alden v. Maine, 527 U.S.
706, 730 (1999) (“To
rest on the words of the [Eleventh] Amendment alone would be to engage in the
type of ahistorical literalism we have rejected in interpreting the scope of
the States' sovereign immunity since the discredited decision in Chisholm [v.
Georgia]” (citing Seminole Tribe v. Florida, 517 U.S. 44, 68, 69
(1996). See also
Printz v. United States, 521 U.S. 898 (1997) (holding that Conrgess may not
by statute require State executive agencies to implement federal law); New
York v. United States, 505 U.S.144 (1992) (holding that Congress may not by
statute require State legislatures to implement federal law by enacting
 We mean to invoke something like the use/mention
distinction that is popular in analytic philosophy. Simon Blackburn, The Oxford Dictionary of Philosophy 387
(Oxford 1996) (“use/mention distinction” The distinction between using a word,
such as ‘cat’, to talk about cats, and mentioning the word, as one would if
pointing out that ‘cat’ has three letters. The distinction becomes important
when the possibility of mistaking use and mention arises, and philosophers
often like to believe that those who do not share their views have made such a
 Indeed, this is a primary area of complaint from
conservative Justices, see, e.g., Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J., dissenting).
 See generally Bernard
Bailyn, The Ideological Origins of the
American Revolution (Enlarged Edition) (Belknap Press of Harvard
University Press 1992); Bernard Bailyn, To
Begin the World Anew: The Genius and Ambiguities of the America Founders (Knopf 2003).
 Calder v. Bull, 3 U.S. 386, 388 -389 (1798) (Chase, J., seriatim).
 At the very least this method
those fundamental rights and liberties which are, objectively, ‘deeply rooted
in this Nation's history and tradition,’[citations omitted] and ‘implicit in
the concept of ordered liberty,’ such that ‘neither liberty nor justice would
exist if they were sacrificed,’ [citation omitted]” and “the … fundamental
liberty interest” in which can be “‘careful[ly] descri[bed]’” by reference to
“[o]ur Nation’s history, legal traditions, and practices,” Washington v.
Glucksberg 521 U.S. 702, 720-721 (1997) (citations omitted). It is
not clear to what extent Lawrence v.
Texas relaxes either the traditional characterization requirement or the
strength of the required historical pedigree for new substantive due process
rights, see, e.g., Lawrence, 539 U.S. at 571-72. There is also a fascinating
academic conversation about whether Lawrence defined a new protected
privacy interest subject to heightened or strict scrutiny or whether Lawrence created a new, less rigid and (possibly) more libertarian approach to
substantive due process analysis; see generally Randy E. Barnett, Justice
Kennedy’s Libertarian Revolution: Lawrence v. Texas, 2003 Cato Sup. Ct. Rev. 21 (2003-2004); Dale
Carpenter, Symposium: Rights After Lawrence v. Texas, Is Lawrence
Libertarian?, 88 Minn. L. Rev. 1140 (May 2004); Laurence H. Tribe, Lawrence
v. Texas: the “Fundamental Right” that Dare No Speak Its Name, 117 Harvard Law Review 1893 (April 2004).
 But see Edelman v. Jordan,
415 U.S. 651, 673 (1974) (explicitly discussing waiver of State sovereign
immunity in federal court as “the surrender of constitutional rights”).
 U.S. Const. Art. II, § 2, cl. 1 (The
President shall be Commander in Chief of the Army and Navy of the United
States, and the militia of the several States, when called into the actual
Service of the United States ….”).
 125 S.Ct. at 2229 (Thomas, J., dissenting).
 Perez v. United States, 402 U.S. 146 (1971)
(upholding federal statute criminalizing “loan sharking” on the theory that the
activity has substantial effects on interstate commerce).
 Gonzales, 545 U.S. at 42, 125 S.Ct. at 2220 (O’Connor, J., dissenting).
 125 S.Ct. at 2215 (Scalia, J., concurring in the
Earlier cases have firmly established this model of
commerce power. See, e.g., United
States v. Darby, 312 U.S. 100
(1941); United States v. Sullivan, 332 U.S. 689 (1948).
 See Raich, 125 S.Ct. at
2207-09; the converse of this proposition is also a live issue. The distinction between regulations
that regulate intrastate economic activity because that activity has a
substantial effect on interstate commerce and those that regulate intrastate
noneconomic activity because it is a necessary part of a large federal
regulatory framework, has never been so clearly expressed as in Justice
Scalia’s concurrence in Raich. Assuming the Supreme Court adopts his
view, we think one might be able to challenge individual statutes on the theory
that they bear no relationship to any legitimate larger scheme of regulation of
the channels or instrumentalities of interstate commerce. In other words, the
law in question might now have to be sufficiently “schematic,” by some
definition, to enable Congress to avoid the argument that it is simply
interfering with State affairs. The interesting implication is for some
federal criminal provisions. Congress has a habit of legislating away one
problem at a time, leaving us, in some areas, with a patchwork quilt of statutory
provisions that have no evident collective purpose, let alone anything like a
“schematic” character. See Alex Kreit, Why is Congress Still
Regulating Noncommercial Activity?, 28
Harv. J. L. & Pub. Pol’y 169,
198 (2004) (advocating
such a standard: “first, the broader scheme must be targeted at a commercial
enterprise; second, the regulated actors or entities must be performing the
specific activity as part of the enterprise”; and stating this “broader scheme
analysis would be employed in substantial effects cases for statutes that fail
the four prong Morrison test”). Take, for example, the recent federal law that added
killing a fetus to a broad range of federal criminal statutes resting on, e.g.,
the commerce power, see Unborn Victims of Violence Act, 18 U.S.C. § 1841
(2004). Under Raich the government might well have difficulty arguing
that some applications of the fetus section would be in any way related to a
larger schematic of the range of federal criminal laws, which generally serve
to protect specific governmental regulatory or institutional interests, like
the statutes protecting federal officials from assault. If the government
brought a charge under § 1841, and the underlying offense did not protect a
federal institution (federal banks, government officials, etc.), require proof
of any jurisdictional facts, or involve conduct that must be regulated by
federal law unless Congress’s regulation of a larger interstate market would be
undermined, then it’s hard to see what would save the statute form invalidation
on commerce clause grounds.
 514 U.S. 779, 845 (1995) (Thomas, J., dissenting,
joined by Rehnquist, C.J., O’Connor, J., and Scalia, J.).
 Term Limits, 514 U.S. at 783.
 Term Limits, 514 U.S. at 845 (Thomas, J.,
 Term Limits, 514 U.S. at 846 (Thomas, J.,
 Term Limits, 514 U.S. at 846 (citing The Federalist No. 39, at 243 (James
Madison) (Clinton Rossiter ed. 1961); J. Elliot, ed. 3 Debates in the Several State Conventions on the Adoption of the
Federal Constitution 94 (2nd ed. 1876); Justice Thomas’s footnote to
this proposition may be even more important. He argues: “The ringing initial
words of the Constitution – ‘We the People of the United States’ – convey
something of the same idea. (In the Constitution, after all, the ‘United
States’ is consistently a plural noun.) The Preamble that the Philadelphia
Convention approved before sending the Constitution to the Committee of Style
is even clearer. It began: ‘We the people of the States of New-Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvannia, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia ….’ Scholars have suggested that the Committee of Style adopted the current
language because it was not clear that all the States would actually ratify the
Constitution. In this instance, I agree with the majority that the Committee’s
edits did not work a substantive change in the Constitution.”
 Term Limits, 514 U.S. at 847 (citing and quoting Reid v. Covert, 354 U.S. 1, 5-6 (1957) (Black, J., plurality
opinion) (“‘The United States is entirely a creature of the Constitution. Its
power and authority have no other source’”) (Thomas omits footnote).
 Term Limits, 514 U.S. at 847-48 (emphasis
 Another instance of an incompletely theorized
agreement, perhaps? See Sunstein, supra, at note 26.
 See, e.g., Douglas H. Ginsburg, Delegation Running
Riot, 18 Regulation 83 (1995).
 Jesse Choper, Richard Fallon, Jr., Yale Kamisar, and
Steven Shiffrin, Constitutional Law: Cases—Comments—Questions (9th Edition) 155 (West 2003) (citing Peter Strauss, The Place of Agencies in Government:
Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573 (1984) and Rebecca Brown, Separated
Powers and Ordered Liberty, 139 U.
Pa. L. Rev. 1513, 1522-31 (1991)).
 Gerald Wetlaufer, Systems of
Belief in Modern American Law: A View form Century’s End, 49 Am. U. L. Rev. 1, 12-13 (1999) (“The
formalists clearly believed that the law was comprised of principles—including
definitions, concepts, and doctrines—broad in their generality, few in their
number, and clear enough to permit answers to the questions of law to be more
or less directly deduced. The formalists also believed that the law generally
is, and should be, unresponsive to particular factual contexts and
circumstances. They wrote as if such principles had an existence of their own,
quite apart from what judges or legislators might actually have said or done,
and that these principles were valid on grounds that were indifferent to what
we have come to see as either the needs of society or the purposes that law
might serve. Although such principles might develop and evolve over time, they
did not do so in accordance with society's changing needs. Neither were they
influenced by custom and practice nor by what people might ‘feel’ to be
‘just’”) (footnotes omitted).
 Morrison v. Olsen, 487
U.S. 654, 697 (1988) (Scalia, J., dissenting from decision to uphold as
constitutional the Independent Counsel Statute’s provision for termination for
“good cause”); see id., 699 (quoting the Article II Vesting Clause and
stating: “That is what this suit is about. Power. The allocation of power
among Congress, the President, and the courts in such fashion as to preserve
the equilibrium the Constitution sought to establish--so that ‘a gradual
concentration of the several powers in the same department,’ Federalist No. 51,
p. 321 (J. Madison), can effectively be resisted.
 Mistretta v. United States,
488 U.S. 361, 413 (1989) (Scalia, J., dissenting from decision to uphold as
constitutional the Sentencing Reform Act’s establishment of the United States
Sentencing Commission) (“I dissent from today’s decision because I can find no
place within our constitutional system for an agency created by Congress to
exercise no governmental power other than the making of laws”).
 See also Young v. U.S. ex rel.
Vuitton et Fils S.A., 481 U.S. 787, 815 (1987) (Scalia, J., concurring in
the judgment) (holding that an interested party in a lawsuit may not be
appointed to prosecute indirect criminal contempt proceedings; Justice Scalia
concurred on a strict separation of powers theory, and would have held that
officials of the judicial branch cannot initiate such prosecutions, but may
only refer potential prosecutions to the executive branch).
 INS v. Chada, 462 U.S. 919 (1983).
 Clinton v. City of New York (Line Item
Veto Case), 524 U.S. 417 (1997).
 United States v.
Curtiss-Wright Export Corporation, 299 U.S. 304 (1936).
 Dames & Moore v. Regan,
453 U.S. 654 (1981).
 Youngstown Sheet & Tube Co. v. Sawyer (Steel
Seizure Case), 343 U.S. 579 (1952).
 See generally Steven Calabresi and
Christopher Yoo, The Unitary Executive During the First Half-Century, 47 Case W. Res. L. Rev. 1451 (Summer
1997); Steven G. Calabresi and Christopher Yoo, The Unitary Executive During
the Second Half-Century, 26 Harv. J.
L. & Pub. Pol’y 667 (Summer 2003); Steven G. Calabresi and
Christopher Yoo, 80 Notre Dame L. Rev. 1 (Nov. 2004); Christopher Yoo, Steven G. Calabresi, and Anthony Colangelo, The
Unitary Executive in the Modern Era, 90 Iowa
L. Rev. 601 (Jan. 2005); see John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs
after 9/11 (University of Chicago Press 2005).
 Jesse Choper, Richard Fallon, Jr., Yale Kamisar, and
Steven Shiffrin, Constitutional Law: Cases—Comments—Questions (9th Edition) 155 (footnote omitted)..
 As we are using the term
“functionalism,” it would encompass the Supreme Court’s deferential,
interest-balancing approach in McCulloch v. Maryland, 17 U.S. at 316 . Justice Jackson’s famous concurrence in Youngstown Steel Sheet & Tube
Co. v. Sawyer Youngstown, 343 U.S. at 634 (Jackson, J., “concurring in the
judgment and the opinion of the court”), comes to mind.
 Term Limits, at 852-853 (Thomas, J.)
(specifically referring to Garcia and arguing that “[w]hen [the Supreme
Court is] asked to decide whether a congressional statute that appears to have
been authorized by Article I is nonetheless unconstitutional because it invades
a protected sphere of State sovereignty, it may well be appropriate for [the
Court] to inquire into what [it] ha[s] called the ‘traditional aspects of State
sovereignty’” and arguing that the Term Limits majority’s reliance on MuCulloch
v. Maryland “is misplaced” because while “McCulloch did make clear
that a power need not be ‘expressly’ delegated to the United States or
prohibited to the States in order to fall outside the Tenth Amendment's
reservation” it is nevertheless the case that “McCulloch did not qualify
this observation by indicating that the question also turned on whether the
States had enjoyed the power before the framing. To the contrary, McCulloch seemed to assume that the people had ‘conferred on the general government the
power contained in the constitution, and on the States the whole residuum of
 Sabri v. United States, 541 U.S. 600 (2004).
 Sabri, 541 U.S. at 610 (Thomas, J.,
concurring in the judgment).
 Sabri, 541 U.S. at 614 (Thomas, J.,
concurring in the judgment).
 Sabri, 541 U.S. at 612 (quoting McCulloch,
17 U.S. (4 Wheat.) at 415).
 Sabri, 541 U.S. at 613 (quoting just previous
to the quoted text to Webster’s Ninth
new Dictionary of the English Language 898 (1991)).
 Term Limits, 514 U.S. at 783 (citing and quoting Powell v. McCormack, 395 U.S. 486, 547 (1969)).
 See note 37, supra, (citing and
quoting Morrison, 529 U.S. at 616, n7) and following discussion.
 Powell v. McCormack, 395 U.S. 486 (1969).
 Term Limits, 514 U.S. at 788-90.
 Powell, 395 U.S. at 549-50 (ordering
retroactive reinstatement—Mr. Powell had already been elected to the next
Congress, which was already underway when the Supreme Court reviewed the case).
 Term Limits, 514 U.S. at 789-90.
 Term Limits, 514 U.S. at 790.
 Term Limits, 514 U.S. at 801 (quoting The Federalist No. 32 (Alexander Hamilton)).
 Term Limits, 514 U.S. at 801 (quoting Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 193 (1819)) (emphasis added).
Justice Thomas took issue with this argument in the context of McCulloch, see
Term Limits, 514 U.S. at 849.
 Term Limits, 514 U.S. at 801
(quoting Sturges, 17 U.S. (4 Wheat. ) at 436) (In that case, “the
Court rejected the argument that the Constitution's silence on the subject of
State power to tax corporations chartered by Congress implies that the States
have ‘reserved’ power to tax such federal instrumentalities. ‘[An] ‘original
right to tax’ such federal entities ‘never existed, and the question whether it
has been surrendered, cannot arise.” The very next sentence of the Court’s
decision is even clearer. “In language that presaged Justice Story's argument,
Chief Justice Marshall concluded: ‘This opinion does not deprive the States of
any resources which they originally possessed’”).
 Term Limits, 514 U.S. at 803 (quoting Wesberry v. Sanders, 376 U.S. 1, 10 (1964) and citing FERC v.
Mississippi, 456 U.S. 742, 791 (O’Connor, J., concurring in the judgment in
part and dissenting in part) for the last sentence of the quoted text)..
 See Amar, America’s
Constitution: A Biography 57-64 (arguing that the Congress created by
the Constitution of 1789 was qualitatively different than that created by the
Articles of Confederation, in that, among other things, it had “‘legislative’”
powers and could enact “‘law,’” which the Article Congress did not have and
could not do).
 Term Limits, 514 U.S. at 838.
 Term Limits, 514 U.S. at 840 (quoting McCulloch, 4 Wheat. at 403) (emphasis added).
 Term Limits, 514 U.S. at 859-60 (“The Georgia
citizen who is unaware of this distinction will have it pointed out to him as
soon as he tries to vote in a Massachusetts congressional election”).
 Term Limits, 514 U.S. at 804 (emphasis added).
 Term Limits, 514 U.S. at 840 (citing Shapiro
v. Thompson, 394 U.S. 618, 630 (1969) (which, Justice Kennedy notes, in
turn quotes The Passenger Cases, 48 U.S. 283 (1849) (Taney, C.J.,
dissenting)) and also citing Crandall v. Nevada, 73 U.S. (6 Wall.) 35,
43 (1868) and quoting Crandall in a parenthetical for the following
proposition: “‘The people of these United States constitute one nation’ and
‘have a government in which all of them are deeply interested’” (the language
from the internal quotes is from Crandall))..
 United States v.
Curtis-Wright Export Corp., 299 U.S. 304 (1936).
 U.S. Const. Amdt. XVII § 1 (“The Senate of
the United States shall be composed of two Senators from each State, elected by
the people thereof, for six years ….”).
 For a compelling explanation of the
theory that power is delegated by the people, and for an interesting
elaboration of the theory through a corporate law metaphor, see Amar, Of
Sovereignty and Federalism, 96 Yale L.J. at 1425.
 Enumeration itself is not a source
of State power. As an empirical matter, most limitations on federal
regulatory authority give the States freedom to experiment. But nothing about
the concept of federal enumeration compels this. The States could have
limited and enumerated powers as well. In some instances, they clearly do. If
the Constitution permits the federal government, and only the federal government,
to engage in some class of regulatory actions, then an enumeration-based
prohibition on some group of actions within that class does not function as a
grant of authority to the States. The treay power is the clearest example. A
limit on the treaty power based on a new interpretation of the word “treaty” is
not a grant of power to the States. The Constitution expressly forbids States
to make treaties with foreign powers, U.S.
Const., Art. I., § 10, cl. 3. The same ought to be true of the Commerce
Clause, and indeed of all federal powers. The danger Morrison-type
reasoning poses on this front is that this insight will be lost. We think
that’s how the dissenters in Term Limits got it wrong. They failed to
analyze the questions of federal and State power as conceptually independent.
 See note 29, supra, and accompanying
 U.S. Const., Amdt. XI. See, e.g., Seminole Tribe of
Florida v. Florida, 517 U.S. 44 (1996); Alden v. Maine, 527 U.S. 706
(1999); Kimel v. Florida Board of Regents, 120 S.Ct. 631 (2000).
 An extreme that the Supreme Court
has quite explicitly rejected, Alden, 527 U.S. at 755 (“In ratifying the
Constitution, the States consented to suits brought by other States or by the
Federal Government”) (citing Monaco v. Mississippi, 292 U.S. 313, 328-29 (1934)).
 Dobbins v. Comm'rs, 41 U.S. (16 Pet.) 435 (1842)(State tax on a federal officer's salary); Collector v. Day, 78 U.S. (11 Wall.) 113 (1871) (federal tax on salary of State judge).
 E.g., South Carolina v. Baker, 485
U.S. 505 (1988) (sustaining federal income tax on selected State and local
 See note 29, supra.
 See, e.g., discussion in Alden v. Maine,
527 U.S. 706 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44
(1996); Printz v. United States, 521 U.S. 898 (1997); New York v.
United States, 505 U.S. 144 (1992); Edelman v. Jordan, 415 U.S. 651
(1974); Younger v. Harris, 401 U.S. 37 (1971)..
 Leaving open the question whether fear should be
thought of as the very basis of American government. See John Adams, Thoughts
on Government (Boston, 1776), rpt. In Charles Hyneman and Donald Lutz, eds., American Political Writing of the
Founding Era 401, 402 (Liberty Fund 1983) (““Fear is the foundation of
most governments; but it is so sordid and brutal a passion, and renders men in
whose breasts it predominates so stupid and miserable, that Americans will not
be likely to approve of any political institution which is founded on it”); available
online at: http://www.pbs.org/wgbh/amex/adams/filmmore/ps_thoughts.html (last accessed 20 February 2006).
 209 U.S. 123 (1908) (holding that State sovereign
immunity does not relieve Attorney General of Minnesota from duty to comply
with prosepctive equitable orders to comply with federal law).
 Alden, 527 U.S. at 757
(1999) (citing Scheuer v. Rhodes, 416 U.S. 232, 237-238 (1974); Ford
Motor Co. v. Department of Treasury of Ind., 323 U.S. 459 (1945)) (“Even a
suit for money damages may be prosecuted against a State officer in his
individual capacity for unconstitutional or wrongful conduct fairly
attributable to the officer himself, so long as the relief is sought not from
the State treasury but from the officer personally”)
 Usery, 426 U.S. at 854-55
(“… we have reaffirmed today that the States as States stand on a quite
different footing from an individual or a corporation when challenging the
exercise of Congress' power to regulate commerce,” a power which “Congress may
not exercise that power so as to force directly upon the States its choices as
to how essential decisions regarding the conduct of integral governmental
functions are to be made. We agree that such assertions of power if unchecked,
would indeed, as Mr. Justice Douglas cautioned in his dissent in [Maryland v.] Wirtz, allow ‘the National Government (to) devour the essentials
of State sovereignty,’ 392 U.S., at 205, 88 S.Ct., at 2028, and would therefore
transgress the bounds of the authority granted Congress under the Commerce
Clause. While there are obvious differences between the schools and hospitals
involved in Wirtz, and the fire and police departments affected here, each
provides an integral portion of those governmental services which the States
and their political subdivisions have traditionally afforded their citizens.
We are therefore persuaded that Wirtz must be overruled”).
 U.S. Const. Art VI, cl.2; Testa v. Katt,
330 U.S. 386 (1947). See also Gregory, 501 U.S. at 452 (which avoided
the question whether to extend commandeering to State judges by finding that
absent “plain Statement” in law, federal age discrimination act cannot be
applied to State judges, and refusing to find such a Statement in the ADEA).
 Printz v. United States, 521
U.S. 898 (1997) (“where ... it is the whole object of the law to direct the
functioning of the State executive, and hence to compromise the structural
framework of dual sovereignty, ... a ‘balancing’ analysis is inappropriate”).
 Daniel Farber, Lincoln’s
Constitution (University of Chicago Press 2003).
 Farber, Lincoln’s
 Farber, Lincoln’s
 Farber, Lincoln’s
 Id. (“Nationalists had to do little more than
take the document at its word, with some added support from the Federalist
Papers and from the early decisions of the Supreme Court”).
 See generally Edmund S. Morgan, Inventing the People: The Rise of Popular
Sovereignty in England and America (W.W. Norton 1988) (an incredibly
insightful exploration of the history of the concept of popular sovereignty in
the Anglo-American tradition).
 See, e.g., Sanford Levinson, Our Undemocratic Constitution: Where The
Constitution Goes Wrong (And How We The People Can Correct It) (Oxford
University Press 2006); Robert
Dahl, How Democratic is the American
Constitution? (Yale University Press 2003) (answer: not very).
 See generally Hanah Pitkin, The Concept of Representation 60-91
(University of California 1967) (discussing the concept of “descriptive
representation” in which the government represents the people because it
literally represents, or describes the people—obviously, this is not the
concept of representation at work in the federal Constitution).
 Pitkin, The
Concept of Representation 72.
 Locke v. Davey, 540 U.S. 712 (2004)
(upholding limitation for minister trainiing in Washington scholarship program in
order to afford States give in “the joints” of Establishment Clause
 Lawrence v. Texas, 539 U.S. 558 (2003)
(striking down Texas’s criminal prohibition of homosexual sodomy on substantive
due process grounds, without explcitily classifying a fundamental right).
 3 U.S. 386, 388
-389 (1798) (stating a view of
unarticulated, natural law, limits on government action.); see note 40, supra.
 We pause to note for that The Ninth Amendment can
function as a hook for extratextual principles of individual liberty in the
same manner as the Eleventh Amendment has been read to protect State immunity
from suit; it reads (“Nothing in this Constitution shall be construed ….”)
exactly as the Eleventh Amendmnet does (“The judicial Power of the United States
shall not be construed ….”).
 Brown v. Bd. of Education (Brown I),
347 U.S. 483 (1954); Griswold v. Connectucut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Cohen v. California, 403 U.S. 15 (1971); Roe v. Wade, 410 U.S. 113 (1973); Texas v. Johnson, 491 U.S. 397 (1981); Planned Parenthood v. Casey, 505 U.S. 833 (1992); Lawrence, 539 U.S. at 558.
 See Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton 2004).
 Alden v. Maine is the most likely candidate.
The language of the Supremacy Clause seems clear (“… and the Judges in every
State shall be bound [by the “Constitution and the Laws of the United States”], any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding”). Presumably, State common law sovereign immunity against
suit in State court is a “Thing in the … Laws of any State.”
 See John Rawls, A Theory of Justice 83-90 (Belknap Press of Harvard
University Press 1971), for an
enlightening discussion of concepts of procedural justice in the context of
Rawls’s discussion of equality of opportunity.
 U.S. Const. Art. I, § 7, cl. 2 (“Every Bill
which shall have passed the House of Representatives and the Senate, shall,
before it becomes a Law, be presented to the President of the United States; he
approve he shall sign it, but if not he shall return it ….”); see Clinton,
524 U.S. at 417.
 Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985); Edelman, 415 U.S. at 651.
 Gonzales v. Oregon, 126 S.Ct. 904 (2006).
 Oregon, 126 S.Ct. at 913, 915, 918.
 Oregon, 126 S.Ct. at 912.
 Oregon, 126 S.Ct. at 912-13.
 Oregon, 126 S.Ct. at 914-922 (discussing
whether to provide deference under Auer v. Robbins, 519 U.S. 452 (1997)
and Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984) and deciding to extend no deference).
 Oregon, 126 S.Ct. at 922.
 Oregon, 126 S.Ct. at 923.
 Id; Oregon, 126 S.Ct. at 939 (Thomas,
 Oregon, 126 S.Ct. at 925.
 Oregon, 126 S.Ct. 914 (quoting Oregon v.
Ashcroft, 368 F.3d 1118 (9th Cir. 2004) (in turn quoting Gregory,
501 U.S. at 460)).
 Oregon, 126 S.Ct. at 913.
 Granholm v. Heald 125 S.Ct.
 Granholm, 125 S.Ct. at 1895 (he argued
that “[t]he rule prohibiting State discrimination against interState commerce
follows … from the principle that States should not be compelled to negotiate
with each other regarding favored or disfavored status for their own citizens,”
and that “[s]tates do not need, and may not attempt, to negotiate with other
States regarding their mutual economic interests”).
 See Edwards v. California,
314 U.S. 160, 174 (1941) (quoting Baldwin v. G.A.F. Seeling, Inc., 249 U.S. 511, 523); see also Saenz v. Roe, 526 U.S. 489 (1999).
 Maine v. Taylor, 477 U.S. 131 (1986); see
also Philadelphia v. New Jersey, 437 U.S. 617 (1978) for an earlier
discussion of similar issues.
 Taylor, 477 U.S. at 137-38.
 Taylor, 477 U.S. at 149, n19 (quoting Robertson
v. California, 328 U.S. 440, 458 (1946)).
 Taylor, 477 U.S. at 151.
 This is hardly a new concept. See
Mobile Co. v. Kimball, 102 U.S. 691, 699 (1880); and id. at 701
(discussing Cooley v. Bd. of Wardens of Philadelphia, 53 U.S. 299
 Maine v. Taylor 477 U.S. 131, 152-153
(1986) (Stevens, J., dissenting) (emphasis added; paragraph break omitted).
 See Taylor, 477 U.S.
at 140 (“Maine's ban on the importation of live baitfish thus is constitutional
only if it satisfies the requirements ordinarily applied under Hughes v.
Oklahoma[, 441 U.S. 322 (1979),] to local regulation that discriminates
against interstate trade: the statute must serve a legitimate local purpose,
and the purpose must be one that cannot be served as well by available
nondiscriminatory means”); Philadelphia, 437 U.S. at 624 (“The crucial
inquiry … must be directed to determining whether [the statute] is basically a
protectionist measure, or whether it can fairly be viewed as a law directed to
legitimate local concerns, with effects upon interstate commerce that are only
incidental”); cf. Pike v. Bruce Church, 397 U.S. 137, 142 (1970) (“Where
the statute regulates even-handedly to effectuate a legitimate local public
interest, and its effects on interstate commerce are only incidental, it will
be upheld unless the burden imposed on such commerce is clearly excessive in
relation to the putative local benefits. Huron Portland Cement Co. v. City
of Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 816, 4 L.Ed.2d 852. If a
legitimate local purpose is found, then the question becomes one of degree”).
 And what Congress gets can be valuable indeed.
Consider Justice Souter’s similar arguments about local rights in another
environmental case, C&A Carbone v. Town of Clarkstown, 511 U.S. 383,
421 (1994) (Souter, J., dissenting) (quoting Garcia, 469 U.S. at 556),
where he dissented from the Supreme Court’s decision in that case to strike
down a law establishing municipally owned waste collection and providing it
with special rights. Chief Justice Rehnquist’s arguments in his dissent in the Healy case have much the same ring, West Lynn Creamery, Inc. v. Healy,
512 U.S. 186, 216-217 (1994) (Rehnquist, C.J., dissenting, joined by
Blackmun, J.) (quoting New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting)). Chief Justice Rehnquist focused on the
notion of comity, in Oregon Waste Systems, Inc. v. Dept. of Environmental
Quality of State of Or. 511 U.S. 93, 111-12 (1994) (Rehnquist, C.J.,
dissenting, joined by Blackmun, J.), where the Supreme Court invalidated yet
another solid waste regulation. Chief Justice Rehnquist’s point is well
taken: if comity means anything, it means not treating your neighbor as a garbage
 Am. Trucking Ass’ns v. Mich. Pub. Serv. Comm’n,
125 S.Ct. 2419 (2005); id. at 2426 (Thomas, J., concurring in the
 Id. (citations omitted).
 West Lynn Creamery, Inc. v. Healy, 512
U.S. 186 (1994).
 Healy, 512 U.S. at 207-208 (Scalia, J.,
concurring); see also id., at 211-12 (footnote omitted) (“I would
therefore allow a State to subsidize its domestic industry so long as it does
so from nondiscriminatory taxes that go into the State's general revenue fund.
Perhaps, as some commentators contend, that line comports with an important
economic reality: A State is less likely to maintain a subsidy when its
citizens perceive that the money (in the general fund) is available for any
number of competing, nonprotectionist, purposes”). We assume that we may
ignore the subsidy effects of the market participant doctrine, see Reeves,
Inc. v. Stake, 447 U.S. 429 (1980), for the purposes of Justice Scalia’s
concurrence. See also Am. Trucking Ass’ns, 125 S.Ct. at 2426 (Scalia,
J., concurring in the judgment, citing to his Healy opinion).
 Healy, 512 U.S. at 210 (Scalia, J.,
concurring) (citations omitted).
 Id. (citations
 With respect to Justice Kennedy, see, e.g., Term
Limits, 514 U.S. at 838 (Kennedy, J., concurring) (“The Framers split the
atom of sovereignty”); Granholm v. Heald 125 S.Ct. at 1885; Lopez, 514 U.S. at 565 (Kennedy, J., concurring).
 Or, perhaps more precisely, not to
be trusted not to resist the temptation to save political capital and garner
political points in the States by refusing to displace State political
settlements already won. Admittedly, there are significant collective action
problems. Structural collective action problems, if proved to exist for a
particular issue or range of issues, might change the analysis and justify
Supreme Court intervention. An argument would need to be offered up, however,
to show why this issue is different from that or most issues.
 Pike, 397 U.S. at 137; see notes 164
and 165, supra.
 See authorities cited in note 164 and 165, supra.
 Chada, 462 U.S. at 919; see also Metropolitan
Washington Airports Auth. v. Citizens for the Abatement of Airport Noise, Inc.,
501 U.S. 252 (1991).
 Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984); see Cass R. Sunstein, Is the
Clean Air Act Unconstitutional?, 98 Mich. L.Rev. 303, 336 (1999).
 E.g., Gonzales v. Oregon, 126 S.Ct.
904 (2006); see notes 144-54, supra.
 Clinton (The Line Item Veto Case), 524
U.S. at 417.
 U.S. Const., Art. V (“… no State, without
its Consent, shall be deprived of it’s [sic] equal Suffrage in the
 Morrison, 529 U.S. at 615-616 (2000) (citing Lopez,
514 U.S. at 575-79 (Kennedy, J, concurring))..
 See Morrison, 529 U.S. at 649-52 (Souter, J.,
dissenting), arguing, among other things, that the Seventeenth Amendment, U.S. Const. Amdt. XVII (“The Senate of
the United States shall be composed of two Senators from each State, elected by
the people thereof, for six years ….”) and Garcia v. San Antonio Metro.
Transit Auth., 469 U.S. at 528, altered the constitutional calculus, and,
in effect, remanded federalism disputes to the court of politics. Indeed,
Chief Justice Rehnquist’s argument that Congress should be understood
emphatically not to be like Parliament, Morrison, 529 U.S. at 616, n7; see note 32, supra, was made in response to this point.
 Morrison, 529 U.S. at 616, n7.
 See, e.g. Taylor, 477 U.S. at 131.
 Southern Pac. Co. v. Jensen,
244 U.S. 205, 222 (1917) (Holmes, J., dissenting) (“The common law is not a brooding omnipresence in the sky, but the articulate
voice of some sovereign or quasi sovereign that can be identified; although
some decisions with which I have disagreed seem to me to have forgotten the
 See, e.g., Alexander Bickel, The Morality of
Consent 12-25 (1975) (discussing Edmund Burke’s Reflections on the
Revolution in France (1790)).
 Granholm 125 S.Ct. at 1895.
 E.g., Philadelphia v. New Jersey, 437 U.S. 617 (1978); H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 (1949); Baldwin v. G.A.F.
Seelig, Inc., 294 U.S. 511 (1935).
 See Gibbons, 22 U.S. at 223-224 (1824) (Johnson, J.) (“The strong sympathies … which bound the States
together during a common war, dissolved on the return of peace; and the very
principles which gave rise to the war of the revolution, began to threaten the
confederacy with anarchy and ruin. The States had resisted a tax imposed by
the parent State, and now reluctantly submitted to, or altogether rejected, the
moderate demands of the confederation. Every one recollects the painful and
threatening discussions, which arose on the subject of the five per cent.
duty. Some States rejected it altogether; others insisted on collecting it
themselves; scarcely any acquiesced without reservations, which deprived it altogether
of the character of a national measure; and at length, some repealed the laws
by which they had signified their acquiescence. For a century the States had
submitted, with murmurs, to the commercial restrictions imposed by the parent
State; and now, finding themselves in the unlimited possession of those powers
over their own commerce, which they had so long been deprived of, and so
earnestly coveted, that selfish principle which, well controlled, is so
salutary, and which, unrestricted, is so unjust and tyrannical, guided by
inexperience and jealousy, began to show itself in iniquitous laws and
impolitic measures, from which grew up a conflict of commercial regulations,
destructive to the harmony of the States, and fatal to their commercial
interests abroad. This was the immediate cause, that led to the forming of a
convention” (paragraph breaks removed; this appears as three paragraphs in
original)); see also Id., at 224-225.
 See Edwards, 314 U.S. at 174; see also Saenz, 526 U.S. at 489.
 Nat’l Foreign Trade Council v.
Natsios 181 F.3d 38, 61-71 (1st Cir. 1999) (holding that
Massachusetts law directing State agencies not to conduct business with
companies that trade with Burma was preempted by the dormant Foreign Commerce
Clause), aff’d on other grounds Crosby v. Nat’l Foreign Trade Council
530 U.S. 363 (2000) (holding that Massachusetts law directing State agencies
not to conduct business with companies that trade with Burma was preempted by
federal trade sanctions regime).
 U.S. Const. Art. VI, cl. 2.
 Michael Stokes Paulsen has
persuasively described the Civil War as a definitive act of constitutional
interpretation that resolved the question of secession. Michael Stokes
Paulsen, The Civil War as Constitutional Interpretation 71 U. Chi. L. Rev. 691 (Spring 2004). In
fact, in a note in this article Professor Paulsen humorously describes his
attempt to denote the Civil War as an act of constitutional interpretation by
referring to it as if it were a case, “Grant v. Lee,” and the subsequent request
he received from a law review’s editorial staff to provide complete citation
information. Id. at 693, 727, n4 (“When once before I made oblique
reference, with irony, to the ‘case’ of Grant v Lee (Appomattox Court House
1865) in a footnote to an academic article, the law review editors asked me to
provide a case reporter citation, as they had not been able to find it on
Westlaw or Lexis”).
 46 U.S. 504 (1847).
 Thurlow, 46 U.S. at 583.
 Thurlow, 46 U.S. at
583; see also Parker v. Brown, 317 U.S. 341, 359-360, (1943); id.,
317 U.S. at 589; Baltimore & O.R. Co. v. Maryland, 88 U.S. 456, 471
 Gibbons v. Ogden 22 U.S. 1, 198-200 (1824).
 Gibbons v. Ogden, 22 U.S. at 204-205 (1824); see also Thurlow v. Com. Of Mass., 46 U.S. 504, 578-79 (Taney, C.J.).
 See note 144-154, and accompanying text, supra.
 Jensen, 244 U.S. at 222 (Holmes, J.,
 See, e.g., South Dakota v. Dole, 483
U.S. 203 (1987) (upholding federal law conditioning receipt by a State of a
percentage of the money Congress allots to it to fund federal highway projects
on its changing its minimum drinking age to at least 21).
 Ex Parte Young, 209 U.S. 123 (1908).
 U.S. Const. Art. I, § 2, cl. 2 (House
qualifications); see notes 81-98, supra, and accompanying and
following text (discussing Term Limits, which involves House
qualifications); see also U.S.
Const. art. I, §3, cl. 3 (Senate qualifications).
 See Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992).
 See, e.g.,Younger, 401 U.S. at 37; Samuels v. Mackell, 401 U.S. 66 (1971); Steffel v. Thompson, 415 U.S. 452
(1974); Hicks v. Miranda, 422 U.S. 332 (1975).
 See, e.g., Middlesex Co. Ethics Committee v.
Garden St. Bar Assn., 457 U.S. 423 (1982); Penzoil v. Texaco, 481
U.S. 1 (1987).
 U.S. Const. art.
I, § 8, cl. 3.
 See U.S.
Const. pmbl. (“We the People of the United States, in Order to form a
more perfect Union, establish Justice, insure domestic Tranquility, provide for
the common defence, promote the general Welfare, and secure the blessings of
Liberty to ourselves and our Posterity, do ordain and establish this
Constitution for the United States of America”). See Amar, America’s Constitution: A Biography 3-53
(discussing the preamble to the Constitution).
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