Tendentious, mendacious or audacious? John Roberts rewrites the 10th Amendment

Sandy Levinson

Posted 3:19 PM by Sandy Levinson [link] (44) comments

Q. What’s worse than discrimination? (A) Accusations of bigotry. (B) Stopping discrimination.

Joseph Fishkin

For the past couple of days I’ve been turning over in my head one important question that was part of both Shelby County and Windsor.  The common question is: to what degree should the Court defer to the judgments of Congress?  Apparent hypocrisy on this issue is easy to find—perhaps easiest in the case of Justice Scalia, whose Windsor dissent excoriates the majority at considerable length for impugning the judgments of “our respected coordinate branches, the Congress and Presidency” in enacting DOMA (p.19).  Just 24 hours earlier, he joined the Shelby County majority in the extraordinary decision to toss aside, largely without discussion, Congress’ 15,000 page record of discrimination in support of the Voting Rights Act renewal.

However, on a different reading, those two votes are perfectly consistent.  On this second reading, the troublesome thing in Windsor to Justice Scalia is not overturning the considered judgment of Congress, but rather, impugning legislators’ motives as being in some way bigoted or racist.  On this second reading, the problem with the Windsor majority was that in holding that those enacting DOMA acted from a “bare . . . desire to harm a politically unpopular group,” the majority unfairly portrayed that Congress (and President Clinton, I guess) as the “unhinged members of a wild-eyed lynch mob” (p.19).  That’s unfair, Justice Scalia says, adding: “Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court’s scorn [a citation follows to a Louisiana case about teaching creationism]).” If the Court wants to charge Congress with being as ignorant and bigoted as a lynch mob or a bunch of Louisiana creationists, he writes, the Court needs “the most extraordinary evidence.”

This view is sort of consistent with the majority opinion in Shelby County.  There, of course, interestingly, we are actually talking about “some once-Confederate Southern state[s].”  In renewing the VRA, Congress might be viewed as acting like the Court majority acted in Windsor (in Justice Scalia’s telling): Congress was condemning some democratically elected governments—those of the covered jurisdictions—as being a bunch of unreconstructed racists, whereas in fact this is unfair, as “[t]hings have changed in the South” (Chief Justice Roberts’ opinion in Shelby County at p.6, quoting himself in NAMUDNO).

So here’s a consistent principle: don’t impugn the motives of modern governments—even or perhaps especially in the South—as bigoted, whether against black people or gay people or anyone else.  Call it the Anti-Romer principle: don’t do what Justice Kennedy did in Romer.  Don’t hold that the people or their representatives are bunch of bigots.  (In Romer, the Court concluded that the people of Colorado enacted an initiative prohibiting certain legal protections for gay people for an illegitimate reason: “to make them unequal to everybody else.”)  We can stipulate, I think, that anyone who believes strongly in this Anti-Romer principle would have been among the three dissenters in Romer.

I got this far and tried this story out on Cary Franklin.  She was skeptical, and threw a major wrench in it, by asking “what about Fisher?”


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Posted 1:21 AM by Joseph Fishkin [link]

Recovering Reconstruction

Gerard N. Magliocca

I just wanted to add a brief word to Mark and Stephen's posts on the absence of any significant discussion of Reconstruction in the Supreme Court's opinions.  The Introduction of my forthcoming biography of John Bingham raises this point, tries to explain why that is true in the courts and in our culture more broadly, and expresses the hope that a greater appreciation of Bingham's career will do something to change all of that.  It is essential to bring the Constitution closer to its true meaning.



Posted 6:48 PM by Gerard N. Magliocca [link]

Scalia is right: Justice Kennedy's opinion in Windsor doesn't rest on federalism

Unknown

Posted 5:29 PM by Unknown [link]

Crazy uncles

Andrew Koppelman

Reading the Supreme Court’s opinions in the same-sex marriage cases felt like watching a couple of crazy old uncles bicker. I’m a law professor, and I’ve been reading Supreme Court opinions for years. Justice Anthony Kennedy, who wrote the majority opinion striking down the Defense of Marriage Act, was his typical self: bloviating, self-important, irritating even when he’s right about everything just because he’s so damn pleased with himself. Antonin Scalia, who dissented, also did not disappoint: a snarling, grumpy old man, full of viciously funny one-liners.

Don’t misunderstand me: This was a great day. Same-sex marriage came to California, and DOMA, a stupid, nasty law, is history. The Court acted well. But the judges’ opinions leaven the heroic tale with some comic relief.

You can read the rest of this post at Salon.com, here.
Posted 9:58 AM by Andrew Koppelman [link]

Standing Still

Mark Graber

Posted 8:19 AM by Mark Graber [link] (8) comments

A brief comment on Justice Kennedy's opinion in Windsor

Sandy Levinson

Posted 11:50 PM by Sandy Levinson [link] (96) comments

Avoiding the Civil War

Stephen Griffin

I will chime in to say that I agree strongly with Mark Graber's post on "The Missing Amendments."  The only point I disagree with is that this is new.  The Civil War and the Reconstruction Amendments are conspicuously absent from almost all of the Rehnquist and Roberts Courts jurisprudence on federalism.  You can read pages of discourse in the US Reports on state sovereignty without ever encountering a discussion of how the amendments made a difference to the federal system.  The only time the Court comes to grips with the Civil War is when it is unavoidable, as in the Court's section 5 jurisprudence.  But you may have noticed that many scholars do not find that doctrine persuasive and one of the background reasons is that the Court has never taken the Civil War seriously.  I hope to write about this in the near future.
Posted 5:24 PM by Stephen Griffin [link]

Windsor: LGBT version of Reed v. Reed?

Mary L. Dudziak

While others are working to fill in an implicit logic to Justice Kennedy’s opinion in Windsor, what it most reminds me of is past decisions that offered a result without a theory – perhaps like  Brown (although the social science footnote suggested that there had been a shift in the way equality was understood).  Or, especially, like Reed v. Reed (1971). 

Reed came only 10 years after Hoyt v. Florida, a case that said it was reasonable for states to take into account the idea that women’s place was in the home when constructing a jury system.  Although equality jurisprudence developed significantly between Hoyt and Reed (e.g. Loving v. VA), the Court did not have a developing gender jurisprudence to build upon.  Reed departed, without saying so, from rational basis review when the Court struck down a state law that gave preference to men when two parents sought to be executor of their son’s estate.  The opinion was brief, sort of like Windsor.  The opinion cited as authority the classic rational basis review case Railway Express Agency v. New York.  The state of Idaho had offered a rational, non-invidious reason: avoiding conflict over administration of an estate.  Justice Burger wrote for a unanimous Court only that

Regardless of their sex, persons within any one of the enumerated classes of that section are similarly situated with respect to that objective. By providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause.

There was no discussion of why gender was a problematic classification, and no discussion of levels of scrutiny.  Sort of like Windsor.  Intermediate scrutiny, of course, would not appear until five years later in Craig v. Boren. 

As a result without a theory, Reed turned out to be a signal of something to come. It was an indication that the rights of women would finally be taken seriously by the Court.  We might also take Windsor as a signal that more robust equal protection rights for LGBT folks is on the way.  But this makes Windsor’s analytical paucity more striking.  The case it not a sea change, like Brown or Reed, because it follows Lawrence and Romer.  As compared to gender discrimination, it is taking the Court a long time to find a theory.
Posted 4:26 PM by Mary L. Dudziak [link]

Constitutional Choreography?

Neil Siegel

My experience has been that, as of 10 AM this morning, no one in the news media has wanted to talk about the Roberts Court's monumental invalidation of the heart of the Voting Rights Act.

Apparently, yesterday was a long time ago.

I, of course, cannot know why the opinions were handed down in the order that they were. But the order is nonetheless striking. The appearance of moderation in Fisher preceded (predicted?) the outcome in Shelby County, public reaction to which has been muted by Windsor and Perry.

If the Court had wanted to manipulate public opinion, it could not have ordered the opinions any more skillfully.
Posted 3:55 PM by Neil Siegel [link]

Justice Thomas and Korematsu Redux

Jamal Greene

Some time ago I wrote a post in which I asked whether Justice Thomas believes Korematsu v. United States is correctly decided.  I concluded that it was an open question given that he has never (to my knowledge) said otherwise; that he has cited favorably to Hirabayashi v. United States; and that he supported a principle in his Hamdi v. Rumsfeld dissent that is consistent with the majority's decision in Korematsu.

We now have an additional and significant data point, namely Justice Thomas's concurring opinion in Fisher v. University of Texas. Discussing the contours of strict scrutiny, he begins with what appears to be a favorable citation to Korematsu for its recognition "that protecting national security" may satisfy that standard and that the evacuation order at issue in that case was justified by "a definite and close relationship to the prevention of espionage and sabotage."

As I discussed in my earlier post, Justice Thomas's apparent embrace of Korematsu is, at the least, ironic. He is the Justice most hostile to racial classification in every context except the one -- evacuation and detention in the absence of individualized or even general suspicion -- in which every other Justice (and nearly every mainstream legal thinker) agrees that racial classification is impermissible.  There are many opinions in the U.S. Reports supportive of Korematsu's invocation of strict scrutiny, but Justice Thomas's Fisher concurrence appears to be the closest any Justice has come to supporting Korematsu's implementation of that standard.

The best explanation for this tension is Justice Thomas's quasi-religious devotion to constitutional rules over standards, born of his evident hostility to judicial discretion.  Korematsu involves a conflict between two "rules" he holds dear -- the rule that the Constitution is colorblind and the rule that the Executive gets absolute discretion on wartime operational decisions.  Judicial discretion as between these two rules is inevitable, and for reasons only he knows, Justice Thomas seems to favor the second over the first.


Posted 1:47 PM by Jamal Greene [link]

Why Justice Kennedy’s DOMA opinion Has the Unique Legal Structure It Has

Guest Blogger

Rick Pildes

Justice Kennedy’s pathbreaking opinion mixes structural constitutional principles – federalism – with individual rights principles – due process – into a unique blend that leads to Section 3 of DOMA being unconstitutional. Why this mixed blend? Why not decide the case on either the structural basis or the individual rights basis alone?

First, if the case were decided on straight due process/equal protection grounds, it would be very difficult for the decision not to rest on a logic that would compel the conclusion that states are constitutionally obligated to permit same-sex marriage. The very reasons that would make it unconstitutional for federal law to prefer traditional marriage – reasons of morality, or tradition, or related ones – would be the very same reasons states would rely on to defend their laws that prefer traditional marriage. Thus, those state laws would be likely to fall from any straightforward ruling solely on individual rights grounds that DOMA Section 3 violates equal protection/due process. Whether Justice Kennedy wants to get there some other day or not, he doesn’t want to pre-commit now to that ultimate decision. Thus, all of the emphasis on constitutional principles of federalism are a way of tempering that more bald and direct equal protection/due process holding. The federalism emphasis potentially cabins the decision only to DOMA itself, without a logic that would lead directly to an affirmative constitutional obligation for all states to permit SSM. That’s why Justice Kennedy does not decide the case on a more direct individual rights basis.

Second, why then not decide the case on direct structural grounds that DOMA violates constitutional principles of federalism, to which Justice Kennedy is strongly drawn? Because he recognizes that to hold DOMA unconstitutional solely as an intrusion on traditional state areas of control would be a greatly destabilizing innovation in constitutional doctrine. A vast amount of federal law regulates in areas that traditionally and historically were under state control. So Justice Kennedy is not prepared to go down the pure structural route of federalism alone.

By holding DOMA unconstitutional because of some mix of federalism/individual rights constitutional principles – without very directly concluding that it violates either federalism alone or equal protection/due process alone – we have a classic Justice Kennedy decision. He has cobbled together a doctrinal resolution that does not commit to the more dramatic proposition that SSM is constitutionally required, or to the dramatic federalism principle that Congress has no power to override states in areas of traditional state control, while also reaching the conclusion that Section 3 of DOMA is unconstitutional.

Posted 1:34 PM by Guest Blogger [link]

Windsor and the Constitutional Prohibition against Class Legislation

JB

Justice Kennedy's opinion in Windsor (press coverage here and here) studiously avoids using the familiar concepts of levels of scrutiny and fundamental rights.  Instead, he emphasizes that in enacting DOMA, Congress had reached out to stigmatize and impose special burdens on same-sex couples that states had recognized as married. 

The ideas in his opinion may seem strange to people who grew up learning post-1970s equal protection and due process jurisprudence. But they would not be at all strange to people living in the nineteenth century, especially at the time the Reconstruction Amendments were adopted.  (This is *not* a claim that people in the 19th century would have accepted the result in Windsor-- it is a point about the way they conceptualized constitutional claims of liberty and equality.)

A key idea in the nineteenth century was that of class legislation. Class legislation is legislation that picks out a group of people for special benefits or special burdens without adequate public justification.  The idea was that laws should be general, not special, and serve a public purpose, not simply the interests of some powerful group in society.  When Andrew Jackson first invokes the idea of equal protection in his 1832 bank veto message, his objection is that the law is unequal because Congress has given special privileges to wealthy financiers, creating a new kind of aristocracy of wealth and privilege. (The idea of class legislation had overtones of anti-republicanism). The flip side of the notion that legislatures could not great special benefits  was that legislatures could not impose special burdens or unjustifiably single out people or groups for disapproval or harm.  This idea was connected to, although not identical with, the idea of bills of attainder, and the creation of caste by law.
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Posted 1:05 PM by JB [link]

Perry and the Constitutionalization of Agency Law

Mark Tushnet

Posted 11:24 AM by Mark Tushnet [link]

This Pudding Lacks a Theme

Gerard N. Magliocca

Let me start by saying that I like the result in Windsor.  I support same-sex marriage as a policy matter.  And I can understand a few ways of concluding that same-sex marriage is constitutionally required.

However . . .

Justice Scalia's dissent in Windsor is a tour de force on two points:  (1) there was no standing in the case; and (2) the Court's rationale for why the holding applies only to DOMA is nonsensical.  The argument for standing is actually stronger in Perry, where the Court (with a strange lineup of Justices) said that there was no standing.  For all of you who think that standing is just code for "Does the Court feel like reaching the merits?" you now have two fat trophies to mount on your wall.

With respect to the merits, I find Justice Kennedy's opinion hard to understand.  He says it's not a federalism decision, though he talks a lot about states'-rights and marriage.  He says that it is a Fifth Amendment decision, but does not explain why that Due Process Clause should be read differently from the identical provision in the Fourteenth Amendment.  I must say I'm getting tired of reading Supreme Court opinions that throw in some lines of dicta at the end to limit their holdings.  (Bush v. Gore, Grutter v. Bollinger, Lawrence v. Texas, Heller, and now Windsor.)  More to the point, denying marriage to same-sex couples who are married in a state is unconstitutionally demeaning, but denying them any rights in a state is not?  Who believes this?  Anybody?  

Maybe this boils down to a question of how much you like the common-law method.  A basic precept of the common law is that courts reach results that seem right, but it takes a long time for a framework to emerge that makes sense of those precedents.  In the case of sexual orientation, the framework seems obvious.  The Court is applying heightened scrutiny to laws that single out gays and lesbians--they just don't want to say that.  When they eventually strike down all state laws banning same-sex marriage, as they inevitably will, that's what they will say.  I'm surprised, though, that you can't even find one Justice who will say that in 2013.
Posted 11:10 AM by Gerard N. Magliocca [link] (14) comments

The Way Forward After Shelby County

Joseph Fishkin

On the face of it, what the Court did today in Shelby County seems more modest than what it might have done.  While it could have struck down Section 5 of the Voting Rights Act—and indeed Justice Thomas wrote separately to say he would have—instead the Court struck “only” Section 4, the coverage formula that determines which states are covered under the Act.  Many have already pointed out that this is a distinction without a difference: since this Congress seems unlikely to enact a new Section 4 coverage formula (and there is no telling whether such a formula would be upheld by this Court anyway), the Court’s move today was at best false modesty.  Section 5 is essentially dead, whether or not the Court admits it did the deed.

I want to suggest in this post that while it’s correct that this distinction makes little immediate difference, in jurisprudential terms, striking Section 4 was in some ways more radical than striking Section 5.  The Court’s approach to Section 4 represents a new departure in American federalism, one only hinted at in dicta in one previous case: a principle that the states’ “equal sovereignty” constrains Congress’ ability to treat one state differently from another.  This principle is one that should not have survived Reconstruction.  Its appearance in the federalism jurisprudence of 2013 does not augur anything good.

Although the Court would not put it this way, let’s be blunt.  Today’s decision was a major victory for all those who have ever viewed federal civil rights laws as unfairly victimizing and singling out the white South.  I say more about this in this recent essay about the principle of “equal sovereignty” that the Court endorsed today.  I won’t repeat it all here.  To fully understand what happened today, one needs to go back not only to the Nixon and Reagan era of backlash against civil rights laws (and the related revival of talk of “state sovereignty”), but also to a century or so before that.  It was the opponents of Reconstruction and the Reconstruction Amendments who first put forward the argument that the enforcement of black civil rights against the Southern states in particular was an affront to those states’ equal sovereignty.  That is why I think that in jurisprudential terms, and in the long sweep of history, the choice to strike down Section 4 in particular, in part on “equal sovereignty” grounds, was not modest at all, but radical.  As Justice Ginsburg says in dissent (p.30), going this route took considerable “hubris.”

Even so, the Court’s choice to strike the coverage formula (Section 4) as opposed to the preclearance provision itself (Section 5) actually leaves a bit more room for potential responses.  And here I do not simply mean the unlikely scenario of the current Congress quickly enacting a new Section 4 formula.  Section 5 sits now in a kind of suspended animation.  It can be reactivated in specific instances through litigation, even in the absence of any action by Congress, through the so-called “pocket trigger” system (Section 3).  Congress ought to amend and strengthen this system.  In the meantime, civil rights advocates should consider targeted litigation under Section 3 to trigger preclearance coverage in a state like Texas, even if Congress does nothing.

Although I am open to persuasion on this point, after reading the decision today my view of the way forward is this:  Congress should not attempt to enact a revised Section 4.  Instead, Congress (whether this Congress or a future Congress) should enact stronger nationwide voting rights protections, while at the same time strengthening the pocket trigger.  My proposal on the latter point is this:  Section 5 coverage should commence automatically in any jurisdiction that a court determines has violated Section 2.  Coverage should last ten years (to cover a redistricting cycle) and should include other jurisdictions physically within the covered jurisdiction.  I think this proposal would achieve many of Section 5’s aims, and furthermore, I think the Court would uphold it.


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Posted 8:07 PM by Joseph Fishkin [link]

The problem of racism solved, yet again

Andrew Koppelman

The Supreme Court has a long history of declaring that the problem of racism in the United States has been solved. It did that in a series of decisions just after the Civil War, striking down civil-rights and anti-lynching laws and paving the way for decades of racial segregation. And today it has just done it again.

You can read the rest of this post at the New York Magazine website, here.
Posted 3:20 PM by Andrew Koppelman [link]

The Missing Amendments

Mark Graber

Posted 11:00 AM by Mark Graber [link]

Shelby County

Gerard N. Magliocca

To my mind, Justice Ginsburg's dissent is correct in calling out the Chief Justice for declining to "update a statute" to save its constitutionality, citing his opinion in Sebelius.

UPDATE:  The most important implication of the Court's opinion is its use of an "equal state sovereignty" principle to invalidate a federal law.  This could be applied in other contexts, such as the pending constitutional challenge to the Act of Congress that permits a few states (such as Nevada) to have legal sports betting while prohibiting the rest from doing so.
Posted 10:39 AM by Gerard N. Magliocca [link] (26) comments

Why Fisher is Important

JB

Fisher v. University of Texas is a torso of an opinion, a seven-Justice compromise that strongly suggests that a longer opinion either would not write or could not command five votes. Nevertheless, the opinion we have does have several interesting features:
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Posted 8:02 PM by JB [link]

The Court continues micromanaging college admissions

Mary L. Dudziak

My take on Fisher at CNN.com.
(Though cnn just gave it a new headline that is both wrong & inconsistent with my argument.  I focused on the discussion of strict scrutiny and made the point that Kennedy's approach to narrow tailoring gives the courts too big a role in setting admissions policy.)
Posted 5:53 PM by Mary L. Dudziak [link]

Symposium on Michael Greve, The Upside Down Constitution

JB

For convenience, here are all of the essays for our online symposium on Michael Greve's The Upside Down Constitution (Harvard University Press 2012):

Jack Balkin, Introduction

Sandy Levinson, The Business-Friendly Constitution

Neil Siegel, Competitive Federalism and Collective Action Federalism
Rick Hills, Our Vacuous Constitutional Text as Under-Specified Agreement

Michael W. McConnell, Constitutional Theory and Political Science in Michael Greve’s, The Upside-Down Constitution

Michael Greve, A Response to My Critics
Posted 3:57 PM by JB [link]

A Response to My Critics

Guest Blogger

Michael Greve

For the symposium on Michael Greve's The Upside Down Constitution (Harvard University Press 2012).

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Posted 2:56 PM by Guest Blogger [link]

Eureka!

Gerard N. Magliocca

The decision in Fisher explains the Court's choice to grant review of the Sixth Circuit's en banc opinion invalidating Michigan's constitutional amendment banning racial preferences in higher education.  Taking that cert. petition and setting the case down for argument in the Fall seemed odd given that there was the option of vacating and remanding "in light of Fisher."  Since Fisher said nothing, though, the grant makes sense.   
Posted 11:58 AM by Gerard N. Magliocca [link] (5) comments

Inside Baseball Observations/Speculations on Today's Supreme Court Opinions

Mark Tushnet

Posted 11:46 AM by Mark Tushnet [link]

And the (1915, 2013) Winner is . . . Business

Mark Graber

Posted 11:35 AM by Mark Graber [link]

Constitutional Codification

Gerard N. Magliocca

Let's engage in a simple thought experiment.  Suppose Congress passed a law that said "Be it enacted" and then just quoted the Constitution and its amendments verbatim--nothing more.  How should courts apply such a statute if litigation is filed saying that it conflicts with another federal statute?

I ask this question for a couple of reasons.  First, advocates of judicial restraint are often drawn to the idea of some sort of conditional judicial review that allows legislatures to enter into a dialogue with the courts.  Minimalism is one way of accomplishing this (through narrow holdings), while other systems use a non obstante clause to permit the legislative override of certain opinions.  If the Constitution was also a statute, though, then courts would always have the option of avoiding a constitutional question and letting Congress (or a state legislature for a state constitution) reach a contrary conclusion.

Wait a minute.  What I just said cannot be right.  How can the same language be read one way as part of a statute and another way in the Constitution?  A glib answer is that Chief Justice Roberts did that last year (What is a tax?).  A more complete answer is that the interpretation may differ depending on the point of enactment.  In other words, a judge would not automatically read language ratified in 1791 the same way as the same language enacted in 2013.  The legal background could (and usually would) be very different.

This last observation leads to my next thought, which is that codifying the Constitution periodically in a statute would also make it harder for courts to undertake broad changes.  Here's one example.  A statute enacting the Due Process Clause today would include the right to have an abortion.  Suppose the Court then overturns Roe v. Wade.  Nothing would change absent legislative action.  The statute would stand unless the doctrine took the view that permitting abortion was unconstitutional.  Could a court interpret the codification statute to match its new constitutional interpretation?  Possibly, but that would be to hard to explain in a way that would be consistent with an enactment like the one I'm positing.

Anyway, the takeaway is that constitutional codification, like the common-law codifications in the nineteenth century, might be a useful project and merits further scrutiny.



Posted 9:15 PM by Gerard N. Magliocca [link] (62) comments

Constitutional Theory and Political Science in Michael Greve’s, The Upside-Down Constitution

Guest Blogger

Michael W. McConnell

For the symposium on Michael Greve's The Upside Down Constitution (Harvard University Press 2012).

As a work of constitutional analysis, I don’t know what to make of Michael Greve’s book. It seems to consist of criticisms of Supreme Court opinions and doctrines (championed by both sides in the federalism debates), but is essentially silent on what he thinks the various constitutional provisions relating to federalism mean, which is what constitutional interpretation is all about. It is fairly clear what kind of federalism Greve thinks would be desirable, but it is far from clear whether he thinks that kind of federalism is constitutionally mandated, or whether competing versions of federalism should be treated as unconstitutional.

Despite the word “Constitution” in its title, Greve’s book is better understood as a work of political science than of constitutional law. Here it succeeds brilliantly. After reading this book, surely no one will use the term “states’ rights” as a shortcut for constitutional federalism. Greve’s favored version of federalism, competitive federalism, is primarily a structural restraint on state governments, rather than an empowerment. And no one will again make the mistake of thinking that national legislation necessarily derogates from the authority of state governments. Just as regulation often benefits some businesses – usually the large and well-connected – at the expense of other businesses, national legislation often enables state governments to engage in taxation and regulation that would be counterproductive in an environment of competitive federalism.

Greve’s insights thus enable supporters of various policies to choose more intelligently what mix of national and state lawmaking and administration they should favor, depending on their goals. A reader of Greve’s book might well come to the conclusion that the best political course is to be opportunistic about federalism – as both political parties are – rather than to strive for some kind of consistency. (That, of course, is the opposite of a constitutional theory.)

But it seems to me that, whether one leans more to the free-market, limited government side, as Greve does, or to the redistributionist regulatory state, as some of his critics do, there are two aspects of Greve’s competitive federalism that should command more widespread agreement.

First, Greve’s federalism is more conducive to a diversity of policies. Ideologues who think their own views are simply best for everyone will have little use for Greve’s federalism, but those who think that there are a variety of reasonable approaches to policy questions will applaud. Let California be a high-tax, burdensome-regulation state, let Texas be the opposite, and we can see what the relative results are for the common good. Which ends up with better schools, more employment opportunity, more immigration, and rising incomes? When policies touch on moral-cultural matters, moreover, Greve’s federalism enhances freedom by ensuring that when Americans vote with their feet, there will be more than a dime’s worth of difference in the places where they may choose to settle.

Second, Greve is surely correct that it is wrong by any measure to allow individual states with idiosyncratic views to compel the entire nation to conform, through such mechanisms as mass tort litigation or regulation based on out-of state conduct. Where markets are genuinely national and the costs of differentiation among states insurmountable, it is probably better to nationalize standards, rather than allow fifty tails to wag the dog. There are occasions when national majorities should rule the entire nation and occasions where the various state majorities should rule within their own states, but there are probably no occasions where an individual state majority should rule the entire nation.

Michael W. McConnell is Richard & Frances Mallery Professor, Stanford Law School,


Posted 9:00 AM by Guest Blogger [link]

Michael Greve’s Competitive Federalism and the Maturation of the Federalism Debate

Guest Blogger

Ernest A. Young

For the symposium on Michael Greve's The Upside Down Constitution (Harvard University Press 2012).


Posted 10:00 AM by Guest Blogger [link]

Our Vacuous Constitutional Text as Under-Specified Agreement

Guest Blogger

Rick Hills

For the symposium on Michael Greve's The Upside Down Constitution (Harvard University Press 2012).
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Posted 9:00 AM by Guest Blogger [link]

Justice Thomas’ Originalism and the Civil War

Joseph Fishkin

Justice Scalia’s majority opinion in yesterday’s Inter Tribal Council case spoke primarily in a textualist idiom: it framed the case in terms of the purportedly simple question of how to read a very small number of words of statutory text; he even makes the obligatory citation to a convenient dictionary definition (of “accept”).  On the constitutional question of whether the NVRA is within Congress’ power under the Elections Clause, Justice Scalia’s method was pretty ecumenical: a brief originalist invocation of some relevant framers, a structural/functional argument, and a pile of relevant precedents.

In contrast, Justice Thomas’ dissent spoke almost entirely in an originalist mode.  It’s true that he briefly responds to Justice Scalia’s claims about precedent, but that’s not where the action is in this dissent.  Primarily, Justice Thomas offers up pages and pages of analysis of the Constitutional Convention and the deliberate choice, in 1787, to leave it up to the states who would be qualified to vote in federal elections (see p.5-8), along with a related argument that the meaning of “Times, Places, and Manner” in 1787 was relatively narrow (see p.8-12)—that is, that the states retained control over most of the rules of federal elections.  From this, Justice Thomas concludes that if the National Voter Registration Act (NVRA) really required all states to “accept” the federal voter registration form as sufficient, then the NVRA would be unconstitutional.  The federal government, on his view, just doesn’t have the power.

Let’s suppose Justice Thomas is right that in 1787, all relevant constitutional actors would have agreed with him that states’ power to set voting qualifications was broad, and the federal role limited.  This is not a big stretch.  After all, as Thomas points out, at the founding “it would have been difficult to convince States to give up their right to set voting qualifications”; he cites Alex Keyssar’s book for a table of “18th- and 19th-century voter qualifications, including property, taxpaying, residency, sex, and race requirements.”  That last one was key.  Let us all concede: in 1787, the Constitution certainly did not give the federal government any power to tell the states they had to let black people vote.  So, based on this history, we can clearly see that the federal role in elections must be narrow, and states’ powers broad.

Really?

You see the problem.  This analysis seems to, shall we say, bypass a few important events that occurred between 1787 and today, events that are highly relevant to the question of the relative balance of power between states and the federal government in regard to the specific area of voting and elections.  One might begin (but not end) with the events of 1861-70.  How, if at all, should such post-1787 constitutional history affect our reading of the Elections Clause, a chunk of Constitutional text that was written in 1787?  This question is just the latest iteration of an important, recurring question that looms behind many originalist arguments—particularly originalist arguments about federalism.


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Posted 7:03 PM by Joseph Fishkin [link]

Competitive Federalism and Collective Action Federalism

Neil Siegel

For the symposium on Michael Greve's The Upside Down Constitution (Harvard University Press 2012).

Mazel Tov to my friend Michael Greve, who has written a comprehensive and insightful book on American constitutional federalism. In The Upside-Down Constitution, he argues that a structural constitutional principle binds together many of the federalism provisions in the U.S. Constitution. According to his theory of competitive federalism, the Constitution requires a system of governance in which states compete with one another for businesses and citizens. Greve does not maintain that the Framers or Founders of 1787 had a commitment to competition among states explicitly in mind. For example, he concedes that his champion, James Madison, missed the crucial importance of mobility to ensuring a competitive constitutional regime. But Greve does argue that a commitment to competition makes the best structural sense of the Constitution that the Framers drafted and the People ratified.

I have advocated a different structural theory of constitutional federalism, one that I have developed with Robert Cooter and refined on my own. The theory of collective action federalism understands the expanse and limits of congressional power in Article I, Section 8, as well as certain limits on state power in Article I, Section 10, and Article IV, in light of the collective action problems that the nation faced under the Articles of Confederation, when Congress lacked the powers to tax, regulate interstate commerce, raise and support a military, and act directly on individuals. The collective action principle distinguishes problems whose solution requires separate action by states from problems whose solution requires collective action by states.

The presence or absence of multi-state collective action problems is central to understanding the scope of federal power in the clauses of Article I, Section 8. These clauses mostly concern collective action problems created by interstate externalities and interstate markets. A prominent example is the Commerce Clause, which empowers Congress to regulate commerce “among the several States” but not commerce that is internal to a state.

Collective action federalism’s structural account of Article I, Section 8 draws substantial support from constitutional text, history, and much judicial precedent. For instance, the Framers understood collective action problems well; indeed, the pervasiveness of such problems facing the states during the Critical Period of the 1780s inspired the Constitutional Convention.

The collective action principle also makes functional sense. It flows directly from the relative advantages of the federal and state governments. Much of what the federal government does better than the states is solve collective action problems that the states cannot deal with as effectively on their own.

What is the relationship between Greve’s theory of competitive federalism and the theory of collective action federalism? There are obvious similarities in interpretive orientation. While Greve and I agree that each constitutional provision possesses its own distinctive meaning, we are both structuralists at heart on matters of constitutional federalism: we inquire into the underlying purposes of many of the Constitution’s federalism-related provisions considered as an architectural whole. We ask how the federalism components of the constitutional machine work or are supposed to work in practice. And in answering that question, we bring to bear tools and insights of modern economic analysis.
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Posted 12:30 PM by Neil Siegel [link]

The Business-Friendly Constitution

Guest Blogger

Sandy Levinson

For the symposium on Michael Greve's The Upside Down Constitution (Harvard University Press 2012).


Michael Greve has written a remarkable book that should be read by anyone interested in federalism. He also offers an interesting--and quite persuasive--defense of Swift v. Tyson and subsequent "federal common law" and, therefore, critique of Brandeis's success in Erie v. Tompkins in eliminating the ability to provide a national common law to protect, say, the insurance industry against the vagaries of state regulation.

One must begin, incidentally, by clearly distinguishing legal (or constitutionalized) "federalism" from political preferences or policies that instantiate "decentralization." The distinction is crucial, for it underscores that the former is a "locked-in," judicially enforceable legal norm, whereas the latter is only a discretionary decision--often made, ironically or not, by people at the top of a centralized hierarchy who altogether accurately believe that decentralized policy formation or implementation will bring about desirable results.   See, eg, modern China, which I gather is remarkably decentralized in many important ways though not remotely "federal."

So why have "federalism"?  Many modern defenses sound in the importance of "diversity" or, as in the often fatuous comments of Justices O'Connor or Kennedy, the completely unsubstantiated belief that there is a necessary connection between local autonomy and "liberty"--or, in some versions, self-government.  That is not Greve's tack at all.  This is most certainly not a book written from a civic-republican sensibility.

Instead, he is primarily interested in what might be termed the "political economy" of federalism, by which I mean its essential role, for Greve, in liberating business from oppressive regulation by generating competition among the states to attract business (and by eliminating the ability of states that might well be reflecting the views of local communities to freeze out goods produced by companies in business-friendly states).  This requires vigorous enforcement of the dormant commerce clause, on the one hand, and limitations on congressional power, on the other hand, to impose "cartelization" by a coalition of dominant states who wish to limit the autonomy of outliers.  The key examples of the latter, of course, are Hammer v. Dagenhart and its overruling case of Darby Lumber.  He would also happily constrain the power of states to impose punitive damages on vulnerable business.  He is unabashed and admirably candid in articulating what might ne termed a "Coolidgean view" of the constitutional enterprise, by which the business of Constitutionalism is protecting business.

Many things might be said, of course.  A "liberal" or "progressive" will be tempted to say that Greve is basically indifferent about the prospect (or likelhood) of "races to the bottom," where a relatively few states can stymie widely-desired reforms (such as regulating child labor or other working conditions) by holding out and threatening their progressive counterparts with the loss of their manufacturers, for example, to more states with more "business-friendly" policies.    

That being said, one of the things I found most interesting about the long, consistently illuminating, and well-argued book is its orthogonal relationship with what passes these days for "conservatism." Thus, for example, he is withering in his dismissal of "originalism.". No doubt there are overlaps between the political preferences of Greve and, say, Randy Barnett, but there is no agreement at all on the underlying meta-theory of interpretation.  Nor, as already suggested, does he have any patience for Scalia's hostility to the dormant commerce clause (because it is in fact created nearly out of whole cloth by judges) or his tolerance of state imposition of "disproportionate" punitive damages in the name of state autonomy and restricting judicial power.  Nor does Greve seem to have his heart in defending states' rights to stifle alternatives to heterosexuality.  This is a book--and argument--about liberating business, nothing more, nothing less.
Posted 9:42 AM by Guest Blogger [link]

Federal Power over Elections & the Hydraulics of Congressional Power

Joseph Fishkin

Today’s Supreme Court decision in Arizona v. Inter Tribal Council of Arizona offers something important, and surprising, to both sides in the long war over procedural and substantive restrictions on voting in the United States.  The holding of the case seems straightforward and modest: When Congress says every state has to “accept and use” a common, federal voter registration form, which is what it said in the 1993 National Voter Registration Act (the NVRA, the “motor voter” law), that means what it sounds like—the state of Arizona can’t say ‘oh, by the way, in Arizona you also need to submit additional documentation with your form proving you’re a citizen, or we’ll toss out your federal form.’

National Voter Registration Form

Indeed the holding looks even more modest than that: the Court notes that Arizona is free to ask the relevant federal agency, the Election Assistance Commission (EAC) (currently hobbled by Republicans in Congress who won't confirm any Commissioners) to please include its proposed citizenship documentation requirements on the federal form, in special instructions that apply only to Arizona residents; if the agency won’t do that, the Court says, Arizona could then sue.  The Court says very little about how that case might be resolved.  (In a little shout-out to administrative law final exam question writers everywhere, the majority raises but doesn’t answer the question of what admin law has to say about appealing the inaction of an agency that can’t say no because it can’t act at all.  “It is a nice point,” the Court says.)  So on the specific fight at issue in this litigation, the Court basically seems to have kicked the can down the road.  Today’s ruling nonetheless stands for at least the modest proposition that the feds, rather than Arizona, are in charge of the voter registration form and its procedural requirements.  Arizona can’t just impose additional documentation requirements on its own.

However, underneath this simple, modest holding we can see some deep movement in the tectonic plates, some shifts in the balance of federal power under the Elections Clause and under the Reconstruction Powers, that might have the effect of raising the stakes in Shelby County v. Holder (the blockbuster case still outstanding this term, regarding Section 5 of the Voting Rights Act) and other cases about the modern sweep of Congressional power under the Reconstruction Amendments. Congress only has so many different powers, and when you pare back one, you raise the stakes for others.  You might call it the hydraulics of Congressional power.  That’s how this case will really matter in the long run.

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Posted 9:51 PM by Joseph Fishkin [link]

The concept of "surplus" in The Upside Down Constitution

JB

For the symposium on Michael Greve's The Upside Down Constitution (Harvard University Press 2012).

A key concept in Mike Greve's book is the idea of "surplus." This concept helps Greve explain the political motivations for the New Deal and the way that the New Deal inverted the proper form of federal-state relations.

Greve argues that the New Deal was not, as generally believed, an increase in federal power at the expense of the states. Rather, it was an increase in government at all levels. Increases in federal power served the interests of state political elites, because it allowed them to collect more "surplus." As he points out (p. 201), "Far from trampling on the states, the expansion of federal commerce powers enhanced their capacity to collect surplus. Even the Commerce Clause, exhibit A in every account of a supposedly nationalist New Deal, was a state-friendly doctrine and a response to state demand."

The expansion of state capacities during the New Deal lead to what Greve calls "cartel federalism."  As he explains early in the book (p. 4) in this cartel version of federalism states do not lose power vis a vis the federal government. Rather, they actively collude with the federal government to maximize "surplus": States will accept increased federal power "only if the move promises to enhance their surplus capacity—very roughly, their ability to tax citizens in excess of the cost of providing public services."

In competitive federalism, by contrast, "states’ attempts to collect surplus will induce exploited citizens to exit—to 'vote with their feet.' This 'Tiebout competition' will discipline the junior governments in the same way in which market competition disciplines private producers." (p. 7)

Cooperative federalism is good for individual citizens "because it promises to reduce government abuse and exploitation all levels." But it is bad for states (or more correctly, state political elites), because they want to maximize their surplus. So states will use the federal government to form what are in effect regulatory cartels. They will do so in order "to improve their position—the `power, emolument and consequence of the[ir] offices,' in Hamilton’s words; their 'surplus,' in the parlance of public choice economists. Much like private producers in economic markets, states 'as states' seek supracompetitive returns. To that end, they need a central government that stands ready to prevent competition among states and to cartelize the political market." (p. 7)

So far, so good. But what exactly does Greve mean by "surplus?" This idea provides the central motivation in Greve's book for explaining why good states do bad things. However, the word is used in different ways in different parts of the book. As far as I can determine, the term "surplus" refers to three different kinds of phenomena:
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Posted 4:31 PM by JB [link]