Friday, April 18, 2014

George Will's Partial Constitution

David Gans

Efforts to reduce the Constitution to one principle usually end up oversimplifying our nation’s fundamental charter, mangling it in the process.  So is the case with George Will’s recent column for the Washington Post, which argues that “progressives are wrong about the essence of the Constitution.”  Will claims that progressives go astray by reducing the Constitution to “democracy,” a word that Will emphasizes appears neither in the Constitution nor in the Declaration of Independence.  In Will’s view, the Constitution is fundamentally about the protection of “natural liberty,” and the need to place limits on the right of democratic majorities to infringe the personal liberty of all Americans.   No one doubts that this is a core aspect of the Constitution and, contrary to Will’s simplistic attack, I don’t know of a single progressive who would disagree.  But Will fails to grapple with the whole Constitution. 

There is much to like in Will’s discussion of personal liberty.   Will properly recognizes that the story begins in the Founding era, with the Declaration of the Independence and the Constitution, but does not end there.  After all, it was the Framers of the Fourteenth Amendment who made birthright citizenship a constitutional guarantee, provided constitutional protection for all the fundamental rights of Americans (called in the text “privileges and immunities”), and wrote equality into the Constitution for the first time.  It was not until ratification of the Fourteenth Amendment that the Declaration’s twin ideals – protection of inalienable rights and equality – were reflected in the Constitution’s text.  For good reason, its Framers called the Fourteenth Amendment the “gem of the Constitution” because “it is the Declaration of Independence placed immutably and forever in our Constitution.”    

No matter what Will says, the real disagreement between progressive and conservative constitutionalists isn’t over whether personal liberty is central – it is – but over the specific rights that are actually protected against the will of the majority.  Right now, for example, laws in many states discriminate against gay men and lesbians in loving relationships who seek to exercise their constitutional right to marry.  Does Will recognize that the blessings of liberty and the promise of equality secured by the Constitution apply to all persons, or would he permit state-sanctioned discrimination against some groups of persons in violation of the Fourteenth Amendment’s command of equal protection for all?  Will’s column evades specifics entirely, unfairly tarnishing progressives as enemies of liberty.  

Will rejects democracy as a basic constitutional value, viewing it simply as the right of majorities to have their way.  This is a dizzying reversal of his own prior writings, which called democracy “the point of the Constitution.”  In any event, Will is wrong.  The Framers understood – as Lincoln did – that only a democratic system of government of, by, and for the people could hope to honor the principles of the Declaration.  As the Declaration puts it, “to secure these rights, Governments are instituted . . . , deriving their just powers from the consent of the governed.” 

The Constitution, born in one of the most democratic moments in human history, put these ideals into practice.  In an exercise of democracy unparalleled elsewhere, the Framers insisted on ratification of the Constitution by “We the People.”  As James Madison explained, our Constitution’s system of representative democracy was designed to be “not [for] the rich, more than the poor.”  In the 225 years since, we have repeatedly amended the Constitution to protect the right to vote and to make our system of government more democratic.  More Amendments are devoted to protecting the right to vote than any other right.  Will’s claim that democracy is not a basic constitutional value does not survive a reading of the whole Constitution. 

Getting this right matters.  The Roberts Court has been steadily rewriting the rules of our democracy, making it easier to spend money to buy elections, but harder to vote in them.  Ten months ago, in Shelby County v. Holder, Chief Justice Roberts wrote the majority opinion striking down a critical section of the Voting Rights Act, one that had been instrumental in protecting the right to vote for countless Americans.  Ignoring that the Fifteenth Amendment explicitly gives to Congress the power to prevent racial discrimination in voting, the Court gutted the most important and successful voting rights law ever enacted in American history.  As a result, in places such as Texas and North Carolina, states are passing laws to make it more difficult for African Americans and other citizens to exercise their constitutional right to vote.  Earlier this month, in McCutcheon v. FEC, the Roberts Court dealt another blow to our campaign finance system, giving the richest Americans – the 1% of the 1% – the right to contribute unlimited sums of money to candidates, parties, and PACs.  Will’s disrespect of democracy as a core constitutional value runs through these opinions.  

George Will tries to offer a civics lesson about how progressives miss the essence of the Constitution.  But Will’s basic problem is his own partial reading of the document, cherry-picking the parts he likes and ignoring the rest.  George Will should go back and read the whole thing.  He’ll find that the Constitution does not force us to choose between liberty and democracy.  It guarantees both. 

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center.  This post is cross-posted at Text and History.

Negotiating Conflict through Federalism

Guest Blogger

Cristina Rodríguez

For the symposium on Federalism as the New Nationalism

In my contribution to this symposium, Negotiating Conflict through Federalism, I begin with the question of what federalism might be good. I emphasize, however, that no single conception of its value exists. The answer to the question depends on the perspective we adopt. Of what value is it to the central government to have state and local governments to contend or work with? Of what value is it to state and local governments to be embedded in a system with a strong central government and myriad competing governments? Of what value is it to the people to have government power split and decentralized? I broach these questions by considering how some of today’s most salient public policy debates—over immigration, same-sex marriage, drug policy, education, and health care—have been unfolding through the institutions of federalism.

I argue that the value of the system common to all participants is that it creates a framework for negotiating conflict over time. In the spirit of this symposium, I emphasize that having many institutions with lawmaking power enables overlapping political communities to work toward national integration and even consensus, while preserving governing spaces for meaningful disagreement when consensus fractures or proves elusive—regular occurrences given the non-linear nature of most difficult debates. In emphasizing federalism as a new form of nationalism, then, we should not lose sight of the importance (and national value) of maintaining institutional independence at the state and local level—independence that even the federal government has reason to appreciate.

The federal government often will have an interest in using federalism’s institutions to its advantage, either to expand its capacities to regulate or to amplify the influence of national politicians or parties. But sometimes this interest evolves into a desire to assert primacy—the federal government may want its federalism both ways. Its lawsuit against Arizona’s immigration bill reflects this ambivalence. Whereas the government highlighted its desire for cooperation with state and local police in immigration enforcement throughout the litigation, the lawsuit itself also sought to reclaim control over the political conversation concerning immigration, as well as the enforcement agenda.

But this desire for control will not be totalizing, and among the chief values of the system to the federal government is its utility in de-escalating conflict. The Department of Justice’s willingness to adjust its enforcement priorities in response to the marijuana legalization referenda in Colorado and Washington and to thus essentially collaborate with those states in their experiments could well reflect an interest in seeing policy shifts develop at a lower-stakes level. Just as developments in the states with respect to same-sex marriage have opened up space for the federal government to changes its benefits policies and articulate a strong constitutional argument in favor of marriage equality, drug policy developments in the states may help enable a shift in federal position that the federal government acting on its own would not dare attempt.

For states and localities (which should not be conflated), the federal system will generate opportunity and influence, and both cooperation and confrontation with the center can be useful. Joint federal-state operations and delegation schemes can enable sub-federal governments to expand their capacities to solve local problems, which has both good-government value to bureaucrats and political value to lawmakers seeking to improve their chances for re-election or build their reputations. Such arrangements might also enhance state actors’ abilities to inform federal policy and related national debates—the potential for influence not lost states and localities that participate in immigration enforcement. But for state and local officials, there will also be a value to a system that safeguards their decisional independence. Independent lawmaking authority creates an institutional framework to address local problems that might not register with a centralized bureaucracy. It also enables state and local officials to act as antagonists of the federal government (or the party in control of it). This dynamic in turn can advance their own profiles as well as the values and preferences of voters not well represented in Washington.

The question then becomes whether federalism has value for the people—perhaps the only question scholars really should be concerned with. It can be hard to escape the banal observation that popular interests are best served by national regulation some of the time and state and local regulation at other times. Federalism easily reduces to a procedural framework for opportunistic ideological struggle—a problem that besets the political parties’ approach to it, too. When Arizona regulates immigration with a strategy of attrition through enforcement, progressive activists eschew federalism. But when state and local police resist cooperation with federal enforcement, the Tenth Amendment suddenly has appeal.

In this last part of the essay, I attempt to judge whether federalism is useful from the popular point of view by whether it serves the ends of government, which in my view include solving social problems and enabling the realization of popular values and preferences. While the former will largely depend on the sort of problem at issue, on the latter front I argue that the creation of multiple electorates helps channel the complexity of public opinion through institutions. It is the institutionalization of multiple and contradictory preferences that over time serves popular interests. This process is aided by the way the federal system generates different forms of governance, such as the ballot initiative, and creates opportunities for people to organize trans-locally and work through horizontal dynamics.

This variety of perspectives makes it difficult to devise a unified normative theory of federalism. Nonetheless, from each relevant perspective, I believe it is possible to express proceduralist preferences for decentralized decision-making, based on observations about the value of decentralization over time to working through hard questions of politics and policy. This conclusion does not preclude acknowledging that national institutions should be strong and sometimes cut off decentralized debate in the interest of the public good, or to overcome regulatory dysfunctions. But it does point in the direction of developing rules of engagement, especially for the federal government, that keep federalism’s institutions robust.

Cristina Rodríguez is Professor of Law at Yale Law School. You can reach her at

Thursday, April 17, 2014

The Shadow Powers of Article I

Guest Blogger

Alison L. LaCroix

For the Symposium on Federalism as the New Nationalism

The terms of the federalism debate have recently changed, with important and potentially far-reaching consequences that have not been fully appreciated—even by the Court itself. The interpretive struggle over the meaning of American federalism has shifted from the Commerce Clause to two textually marginal but substantively important battlegrounds: the Necessary and Proper Clause and, to a lesser extent, the General Welfare Clause. To be sure, the higher-profile commerce power continues to attract an enormous amount of judicial attention and scholarly commentary. But for nearly a decade, the quieter, more structurally ambiguous federal powers listed at the head and foot of Article I have steadily increased in prominence. Today, the battles of judicial federalism are fought not across the well-trampled no-man’s-land of the commerce power or the Tenth Amendment, but in the less trafficked doctrinal redoubts of what I term the “shadow powers.” In my contribution to the Symposium, The Shadow Powers of Article I, I argue that this expansion of the battlefield carries important consequences for the meaning of modern federalism.

            Beginning with Gonzales v. Raich in 2005 and continuing through United States v. Comstock, National Federation of Independent Business v. Sebelius, and United States v. Kebodeaux, the Supreme Court’s “federalism revolution” has taken on a new form. The Court’s federalism jurisprudence has shifted from its once-typical form of inquiry into the scope of Congress’s power to regulate interstate commerce, refracted through the Tenth Amendment, to become an inquiry into the transsubstantive reasons for allowing Congress to regulate at all. This transformation has been especially significant when the Court views Congress as venturing into a domain not explicitly specified in the text of Article I.

I argue that the two clauses operate as shadow powers of Article I, and that their return to the center of debate in the Court and in the broader public sphere provides both a problem and an opportunity for the understanding how the United States’ federal structure should operate. Both powers have a potentially capacious quality, unlike the other Article I powers, which are much more bounded and subject-specific (e.g., “[t]o borrow [m]oney on the credit of the United States”; “[t]o coin [m]oney”; “[t]o constitute [t]ribunals inferior to the [S]upreme Court”). The shadow powers tend to become contested, and to become the linchpins of judicially enforced federalism, when contemporary legal and political players determine – for a variety of reasons, from overly rigid case law to political expediency – that there is no more room to move the doctrine in the domain of “real” enumerated powers, such as the commerce power.

I also offer a normative argument. A description of shadow powers analysis might initially lead one to believe that the Court is using the shadow powers to expand, quietly, Congress’s power beyond the ostensible limits set forth in other doctrinal areas. But such a conclusion reads the direction of the doctrinal change exactly backward. Paradoxically, the growth of shadow powers analysis has tended to narrow the permissible scope of congressional regulatory power. 

But my critique of shadow powers analysis as deployed by the Court is not based on its direction alone. The prominent role of the shadow powers in the Court’s recent decisions is both a doctrinally unprecedented and an unhelpful development that fails to set meaningful standards for how federalism should work in practice.  As I demonstrate, the novelty of shadow powers analysis lies in the sharp line the Court appears increasingly willing to draw between solid, if controversial, Article I powers such as the commerce power, and auxiliary Article I powers such the necessary and proper power. In recent doctrine, the invocation of the shadow powers has helped the Court find room to maneuver within its federalism analysis, while also appearing to maintain its commitment to an apparently unmoving post-Lopez baseline of a narrow commerce power.  This maneuvering might be productive if it were carried out explicitly, with some discussion by the Justices of the reasons for preferring to adjudicate federalism at its doctrinal and textual periphery rather than at its center.  But the result of the growth of shadow powers analysis has in fact been to obscure the outlines of federalism’s map – to shroud genuine (and perhaps salutary) doctrinal changes within a fog of constitutional text, under-overruled precedents, and acontextual readings of foundational cases such as McCulloch v. Maryland.

Alison L. LaCroix is Professor of Law and Ludwig and Hilde Wolf Teaching Scholar at the University of Chicago Law School.  You can reach her at

Wednesday, April 16, 2014

Federalism as Administration and Politics

Guest Blogger

Jessica Bulman-Pozen

For the Symposium on Federalism as the New Nationalism

How should we understand American federalism today? Amidst dysfunction in Washington, the prompt of this Symposium—“Federalism as the New Nationalism”—might suggest the states are now in charge not only of their own affairs but also of the governance of our country as a whole, our nationalism no more than what individual states make it. Or perhaps it might be read to indicate the opposite: that a long-running process of centralization is complete and the federal government has displaced the states, reducing our federalism to nationalism.

In my contribution to the Symposium, From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism, I argue that we need to complicate both the “federalism” and the “nationalism” sides of the equation. We miss too much when we define federalism in terms of autonomous state governance and distinctive state interests, as the federalism literature tends to do. And we miss still more in assuming that nationalism means a unitary federal position, as the federalism literature tends to take for granted. In thinking about federalism and nationalism alike, we should focus on the legally and politically generative interaction among the state and federal governments and the American people.

The story of federalism as nationalism is a story about two things in particular: the administrative state and partisan politics. It’s old news that states administer many federal laws. Increasingly, states also rewrite portions of federal laws pursuant to waivers. In many areas, states don’t enjoy a protected realm in which to set their own policies; instead, they set national policy together with federal politicians and bureaucrats. What this means for our nationalism is just as important as what it means for our federalism. There is plenty of competition between states and the federal government when it comes to state administration of federal law (think healthcare, emissions standards, immigration), but this competition tends not to be about state versus federal interests as such. Instead, states ally themselves with certain federal actors—often members of Congress—in in order to oppose others—often executive branch agencies. We can’t understand today’s federalism without considering the separation of powers, and we can’t understand the separation of powers without considering federalism.

Partisan politics is also a critical part of federalism as the new nationalism. The rise of ideologically cohesive and polarized national political parties, coupled with the rise of overlapping state and federal domains of governance, means that states are critical platforms for the party out of power to fight the party in power in Washington (again, think healthcare, emissions standards, immigration). We see political actors using state and federal governments alike to articulate, stage, and amplify competition between the political parties. Such partisan federalism challenges our understandings of both federalism and nationalism: the states further a set of national interests, not distinctive state interests, yet these national partisan interests are themselves multiple. (State-level direct democracy also provides a forum for Americans nationwide to participate, though funding or other assistance, in national political debates that are neglected at the federal level, like the legalization of marijuana.)

The vision I offer of states as national actors may be unsettling to those who see too much discord and contestation in today’s nationalism. And it may be particularly unsettling to those who value states as independent, autonomous units of government and define federalism accordingly. But attempting to wall off federalism from nationalism to protect one or the other is a misguided quest. Attending to how states pluralize, rather than stand apart from, national governance best captures the contemporary vitality of our federalism and of our nationalism.

Jessica Bulman-Pozen is an associate professor at Columbia Law School.  You can reach her at

Tuesday, April 15, 2014

Federalism as the New Nationalism

Heather K. Gerken

Today the Yale Law Journal has published a Feature marking the emergence of a nationalist school of federalism.  It brings together the work of five scholars (Abbe Gluck, Jessica Bulman-Pozen, Alison LaCroix, Cristina Rodriguez, and myself) who have made unique contributions to the field.  Thanks to Jack Balkin, each of the contributors to the YLJ Feature will offer her take on whether, as the Forum’s title suggests, “federalism is the new nationalism.”

In my Introduction to the collection, I argue that the essays collected in the Feature offer a descriptive and normative account that is deeply nationalist in character.  The work is shorn of the trappings of sovereignty and separate spheres, detached from the notion that state autonomy matters above all else, and attentive to the rise of national power and the importance of national politics.  It shows that federalism can be a tool for improving national politics, strengthening a national polity, bettering national policymaking, entrenching national norms, consolidating national policies, and increasing national power.  State power, then, is a means to achieving a well-functioning national democracy.

There is a reason that the title of this Feature is aimed at the nationalists. Nationalists often pride themselves on taking a clear-eyed view of on-the-ground realities, rebuking federalism’s proponents for not coming to grips with the changes in federal power brought on by the New Deal.  But the nationalists are now the ones behind the times, as they have not yet absorbed how much state power has changed in recent years. States now serve demonstrably national ends and, in doing so, maintain their central place in a modern legal landscape.
My Introduction identifies the basic tenets of the nationalist school.  It is organized around the five features needed for any account of federalism: (1) a tally of the ends served by devolution, (2) an inventory of the governance sites that matter, (3) an account of what gets the system up and running, (4) a description of how the national and local interact, and (5) and “rules of engagement” to guide those interactions.  In each instance, the nationalist school of federalism departs from state-centered accounts of federalism and pushes toward a nationalist vision of devolution’s virtues. 
 Stay tuned.

Friday, April 11, 2014

The Origins of "Necessary and Proper" (Part I: The Corporate Law Background)

John Mikhail

Ever since James Madison and Thomas Jefferson put its meaning at issue in the controversy over the first Bank of the United States, much effort has been spent on determining the original meaning of “necessary and proper” in the Constitution.  This trend has accelerated in recent years, as a Supreme Court inclined toward originalism and textualism has begun to ask whether federal legislation is “proper” under the Necessary and Proper Clause.   Despite this, few scholars have asked where James Wilson drew this particular language from or what he originally meant by this phrase when he first composed it for the Committee of Detail.  Before attempting to grapple with more complex historical questions, such as what the founders as a group understood by “necessary and proper” or what a reasonable English speaker would have taken it to mean in 1787, it seems useful to focus on these preliminary issues.
Recently, Professor Geoffrey Miller has advanced our understanding of this topic by exploring what he calls “The Corporate Law Background of the Necessary and Proper Clause.”  Beginning from the premise that the Constitution itself is an act of incorporation and that “‘[n]ecessary and proper’ feels like a lawyer’s clause—a standard provision that, despite its importance, is not usually the subject of negotiation or debate,” Professor Miller suggests that the origin of this phrase might be located in founding-era corporate charters.  To investigate this thesis, Professor Miller collected hundreds of eighteenth-century and nineteenth-century corporate charters to determine how couplets such as “necessary and proper” were used in these documents.  His impressive database included colonial charters, acts of incorporation for the first and second Banks of the United States, and corporate charters issued by two states, Connecticut and North Carolina, dating from the colonial period through 1819, the year McCulloch v. Maryland was decided.

Examining these sources, Professor Miller found that “necessary and proper” and similar language was ubiquitous throughout this period.  On this basis, he concludes that founding-era corporate law can help us interpret this particular language of the Constitution.  For a law “to be ‘necessary,’” he writes, “there must be a reasonably close connection between constitutionally recognized ends and the means chosen to accomplish those ends; to be ‘proper,’ a law must not, without adequate justification, discriminate against or otherwise disproportionately affect the interests of particular citizens vis-à-vis others.” 
Although Professor Miller’s insight about the corporate law background of the Necessary and Proper Clause seems plausible, his study also has some significant limitations.  For example, most of the corporate charters on which he relies originated after 1787.  Therefore, they could not have influenced the actual drafting of the Necessary and Proper Clause.  In addition, Professor Miller neglects to note that it was Wilson who first wrote the phrase “necessary and proper” for the Committee of Detail.  He thus fails to connect the dots by asking whether Wilson’s own background as a corporate lawyer may have influenced this choice of language. 
As I document in a new article on the Necessary and Proper Clause, when one investigates this issue, the results are revealing and tend to confirm Professor Miller’s thesis.  In this post, I'll summarize some of the main findings of this research, which include the fact that Wilson and his circle of bankers, merchants, and corporate lawyers—Robert Morris, Thomas Willing, Thomas Fitzsimmons, Alexander Hamilton, and others—frequently used the phrase “necessary and proper” or similar language in their articles of association and business correspondence.  In my next post, I’ll explain why this new evidence is not dispositive, in light of the many other prevalent uses of “necessary and proper” and similar couplets during the founding era.
Read more »

Wednesday, April 09, 2014

The Supreme Court Confirmation Process

Gerard N. Magliocca

If you believe Nate Silver, then the GOP has a fine chance of taking control of the Senate in 2015.  The last time that a Democratic President appointed a Justice confirmed by a Republican Senate was in 1895 (Rufus Peckham, the author of Lochner), so this is a rare political conjunction/junction.  I want to make two observations about how a party change in the Senate could shape the Court.

First, we are in uncharted waters with respect to a party division like this in the modern era of polarized parties.  The days where Justice Kennedy (appointed by President Reagan) could be confirmed unanimously by a Democratic Senate are over.  It's hard to know what kind of Democratic nominee can get a majority (or sixty votes) in a chamber controlled by Republicans, and thus we may be looking at a more unorthodox selection the next time around.  (Someone older who won't be on the bench for long?  Someone with a more bipartisan profile?)  It's been a long time since a Justice was confirmed who was not predictable, but that could end in 2015.

Second, the rule change in the Senate to eliminate filibusters of circuit and district judges may have the perverse effect of making a Supreme Court filibuster more likely.  The Senate excluded the High Court from cloture reform, and there would be no reason for a Republican majority to change that when a Democrat is in the White House.  Accordingly, the sixty-vote threshold could apply to anyone that President Obama selects.  No wonder some people want Ginsburg or Breyer to retire now.