Federal History 2021

Federal History: Journal of the Society for History in the Federal Government 13: 2021 is available online.  Here’s the TOC:

Editor’s Note
Benjamin Guterman

Roger R. Trask Lecture
Bill Williams

The Case for John Jay’s Nomination as First Chief Justice
Benjamin Lyons

“This disease . . . knows no State boundaries”: The 1918 Spanish Influenza Epidemic and Federal Public Health
Jonathan Chilcote

“America must remain American”: The Liberal Contribution to Race Restrictions in the 1924 Immigration Act
Kevin Yuill

The Combined Chiefs of Staff and the Public Health Building, 1942–1946
Christopher Holmes

Federalism and the Limits on Regulating Products Liability Law, 1977–1981
Ian J. Drake

Gerald Ford’s Clemency Board Reconsidered
Alan Jaroslovsky

Interview An Interview with Chandra Manning
Benjamin Guterman

--Dan Ernst

Green on the Revolutionary Origins of American Statehood

Craig Green, Temple Law, has published United/States: A Revolutionary History of American Statehood in the Michigan Law Review 119 (2020): 1-70:

Where did states come from? Almost everyone thinks that states descended immediately, originally, and directly from British colonies, while only afterward joining together as the United States. As a matter of legal history, that is incorrect. States and the United States were created by revolutionary independence, and they developed simultaneously in that context as improvised entities that were profoundly interdependent and mutually constitutive, rather than separate or sequential.

“States-first” histories have provided foundational support for past and present arguments favoring states’ rights and state sovereignty. This Article gathers preconstitutional evidence about state constitutions, American independence, and territorial boundaries to challenge that historical premise. The Article also chronicles how states-first histories became a dominant cultural narrative, emerging from factually misleading political debates during the Constitution’s ratification.

Accurate history matters. Dispelling myths about American statehood can change how modern lawyers think about federalism and constitutional law. This Article’s research weakens current support for “New Federalism” jurisprudence, associates states-rights arguments with periods of conspicuous racism, and exposes statehood’s functionality as an issue for political actors instead of constitutional adjudication. Flawed histories of statehood have been used for many doctrinal, political, and institutional purposes in the pat. This Article hopes that modern readers might find their own use for accurate histories of statehood in the future.

--Dan Ernst

A Blurb for Bartie's "Free Hands and MInds"

Some time ago, we posted a notice of Susan Bartie’s Free Hands and Minds: Pioneering Australian Legal Scholars.  At the time, we had no endorsement to post with it.  We have one now:

Free Hands and Minds is centered in absolutely first rate, short-form—longer than an article and shorter than a book—intellectual biographies of three Australian legal scholars, each active at the time when Australian law teaching was professionalizing years after World War II.  Peter Brett who took a Harvard JSD under Henry Hart centered his work  on Criminal Law; Alice Erh-Soon Tay, first on comparisons with and between the Marxist legal systems of China and Russia and later on Human rights; and Geoffrey Sawer the law governing Australian federalism seen from the perspective of political and social circumstances at the time of the relevant decisions.  For each, the scholarship is taken seriously, the life is taken seriously and the academic surround is taken seriously, pretty much all at the same time.  No one could ask more from work in this form.

                    --John Henry Schlegel, University at Buffalo School of Law

--Dan Ernst

Richman and Seo on Federalism and the FBI

Daniel C. Richman and Sarah Seo, Columbia Law School, have posted How Federalism Built the FBI, Sustained Local Police, and Left Out the States, which is forthcoming in the Stanford Journal of Civil Rights and Civil Liberties 17 (2021):

Diplomacy Ceremony, National Police Academy (LC)

This Article examines the endurance of police localism amid the improbable growth of the FBI in the early twentieth century when the prospect of a centralized law enforcement agency was anathema to the ideals of American democracy. It argues that doctrinal accounts of federalism do not explain these paradoxical developments. By analyzing how the Bureau made itself indispensable to local police departments rather than encroaching on their turf, the Article elucidates an operational, or collaborative, federalism that not only enlarged the Bureau’s capacity and authority but also strengthened local autonomy at the expense of the states. Collaborative federalism is crucial for understanding why the police have gone for so long without meaningful state or federal oversight, with consequences still confronting the country today. This history highlights how structural impediments to institutional accountability have been set over time and also identifies a path not taken, but one that can still be pursued, to expand the states’ supervisory role over local police.

--Dan Ernst

Green on the Three Commerce Powers

Christopher R. Green, University of Mississippi School of Law, has posted Tribes, Nations, States: Our Three Commerce Powers:

This Article argues that one aspect of the power to regulate “Commerce with foreign Nations … and with the Indian Tribes” is broader than the power over “Commerce … among the several States.” If “Tribes” and “Nations” consist of people, but “States” of territory, then “Commerce … among the several States” must cross state lines, even though small, local transactions between Americans and non-citizens are commerce “with foreign Nations” or “with the Indian tribes.”

Why think that? There is considerable evidence that the tribal commerce power replaces “trade … with the Indians” in the Articles of Confederation, but early direct definitions of the other two commerce powers are surprisingly rare. Antifederalists complained at length that the power to tax for the general welfare would make the federal government all-powerful, but not so about the commerce power which largely did the job after 1937. In January 1788, Federal Farmer 11 described the foreign commerce power as “trade and commerce between our citizens and foreigners.” Elbridge Gerry restated it in 1790 as “trade with foreigners.” Jefferson and Randolph’s 1791 bank objections defined foreign and tribal commerce as commerce with non-citizens. Martens’s 1788 international-law treatise explained “commerce … with foreign nations” as including “power over the foreigners living in its territories.” The 20-year slave-trade protection presupposes broad foreign commerce power, but narrow interstate commerce power: Congress may control “migration,” but not domestic slavery or other labor conditions. The earliest attacks on federal power over non-citizens’ commerce discussing the 1794 Jay Treaty and 1798 Alien Act were internally inconsistent. Despite lots of its own inconsistency, the Supreme Court adopted this view in 1866 in United States v. Holliday.

Why care? Broad foreign and tribal commerce powers undermine the late-nineteenth-century motivation for unenumerated “plenary” powers over foreign affairs or tribes; a limited interstate commerce power allows “powers not delegated to the United States by the Constitution” to refer to something. The tribal commerce power likewise supports the Indian Child Welfare Act’s regulation of the transfers of tribal-member custody. Congress’s 1870 protection of non-citizens’ occupational and contracting rights and 1986 prohibition on employment discrimination rest on its foreign commerce power, not the Fourteenth Amendment; Congress may regulate non-citizens’ labor conditions, but not labor conditions generally. Antidiscrimination law can then refocus on equal citizenship — the Privileges or Immunities Clause for states and fiduciary principles for the federal government — instead of historically-less-plausible rights for all humanity. Cases like Graham v. Richardson would turn on pre-emption, and three gaps in antidiscrimination law — federal citizenship classifications in Mathews v. Diaz, governmental functions in Ambach v. Norwick, and tribal classifications in Morton v. Mancari — receive possible justification.

 -Dan Ernst

Green on Erie's Fall and Rise

Craig Green, Temple Law, has posted Erie and Constitutional Structure: An Intellectual History, which appeared in the Akron Law Review 52 (2019):

This essay celebrates Erie's 80th birthday by charting the decision's extremely dynamic significance as a constitutional decision. Newly collected historical evidence shows that "original Erie" was criticized as constitutionally heretical in the 1930s and 1940s . The decision rose to power only in the 1950s and 1960s, carried forward on the powerful legal-process shoulders of Hart and Wechsler. During the 1970s and 1980s, Erie was pushed toward the periphery of constitutional law along with the legal process school itself. Yet in the 21st century, Erie rose from the ashes as political conservatives articulated a forceful "new Erie" myth about separation of powers.

The fact that Erie's multiple meanings are so often conflated or ignored reveals a correspondingly prevalent inattention to methods of interpreting precedents. As a matter of legal theory, iconic court decisions offer legal mixtures of stability and dynamism, of legitimacy and politics, that are analogous to statutes, constitutions, and other forms of law. Erie's birthday offers an especially useful chance to think about the untapped possibilities of "precedential originalism" or "living precedentialism," alongside interpretive schools that are well known in other legal contexts.

--Dan Ernst

Weinberger on Frankfurter and Abstention Doctrine

Lael Daniel Weinberger, the Berger-Howe Legal History Fellow, Harvard Law School, has posted Frankfurter, Abstention Doctrine, and the Development of Modern Federalism: A History and Three Futures, which is forthcoming in the University of Chicago Law Review:

Felix Frankfurter (LC)

In its first century and a half, the Supreme Court never used the term “federalism” in its opinions. The Court had talked about federal-state relations before but the concept had gone unlabeled. That changed in 1939. Something new was happening, thanks in large part to Justice Felix Frankfurter. Just a month after joining the Court, Frankfurter authored the Court’s first opinion using the term “federalism.” Frankfurter introduced federalism as a key concept for analyzing the relationship between state courts and federal courts. Before long, Frankfurter would rely on federalism to fashion an original and enduring doctrine of judicial federalism: abstention, requiring federal courts to sometimes refrain from hearing cases that were within their jurisdiction.

This article provides a historical study of Frankfurter’s contribution to the modern law of judicial federalism. It documents Frankfurter’s theory of federalism in his judicial opinions with a focus on the abstention cases. It also shows how the abstention cases and their concept of federalism were rooted in Frankfurter’s Progressive politics. They were a reaction to what he perceived as the federal courts’ anti-regulatory and anti-labor attitudes.

The history—relevant again today, as the political discussion around the courts again echoes the Progressive era—sets the stage for considering the future of abstention. I suggest three possibilities. The first, an originalist future, would more or less maintain the contemporary Supreme Court’s current status quo on abstention, somewhat more modest than what Frankfurter envisioned: a cautious use of abstention in a relatively small number of equitable cases. A second possibility would be a liberal future that backtracks from abstention, as legal liberals recognize a cautionary lesson in Frankfurter’s hostility to an assertive, rights-protecting judiciary. The third future would one of embracing Frankfurter’s vision of abstention in the name of judicial restraint. Abstention has potential to curb federal court power and, at least on the margins, put more adjudicative power in state courts. This possibility might bring together modern progressives, who are wary about a largely-conservative federal judiciary, with conservatives who want to promote judicial restraint and an increase in democratic accountability.

–Dan Ernst

Goldman on State Prosecutions of State Crimes in Federal Courts

David N. Goldman, Law Clerk to Judge David R. Stras, United States Court of Appeals for the Eighth Circuit, and a recent graduate of the University of Virginia School of Law, has posted The Neglected History of State Prosecutions for State Crimes in Federal Courts, which is forthcoming in the Texas Tech Law Review:

The Constitution provides the federal and state governments certain tools to contest and check one another. One of these tools is the authority of federal courts, a forum thought to be more hospitable to national interests, to hear cases “arising under” federal law. But what suits arise under federal law? The question has long perplexed academics and the courts. This article explores the issue through the lens of Congress's historical attempts to use this jurisdiction as a shield against state interference with federal policy. The history implicates timeless questions regarding the means by which Congress can navigate this Nation’s system of competing sovereignties, and the broader federal-courts question of just how far arising-under jurisdiction goes.

--Dan Ernst

Aroney on Australian Federalism

Nicholas Aroney, University of Queensland TC Beirne School of Law, has posted The Design of Australian Federalism, from The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018), edited by Cheryl Saunders and Adrienne Stone:

This chapter, published in The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018), edited by Cheryl Saunders and Adrienne Stone, examines the design of Australia's federal system. Two historical propositions affirmed in the preamble to the constitution are central to this idea. These are, firstly, that the constitution was predicated on an agreement between the people of the Australian colonies and, secondly, that the intention was to unite the colonies into an indissoluble federal commonwealth. The Australian constitution does not rest upon the consent of an already consolidated people; nor does it create a unitary state. It is the result of an agreement among several mutually independent political communities and it establishes a federal system of government that preserves their continuing existence as self-governing polities. This chapter explains how these central ideas are embodied in the distribution of powers, system of representation, and processes of alteration and amendment established by the constitution.

--Dan Ernst

New from the FJC History Office

The History Office of the Federal Judicial Center is out with two new websites.  The first, Cases that Shaped the Federal Courts, groups the Office’s case summaries, discussion questions, and excerpted documents in relation to various topics: Defining the Judiciary; Federal Jurisdiction; Federalism; Habeas Corpus; Judicial Independence; Judicial Review; Justiciability; Non-Adjudicatory Roles of Federal Judges; and Remedies.  The second is a series of essays on the history of the Rules of Practice and Procedure in the Federal Courts.

--Dan Ernst

Ehighalua on the Tenth Amendment

Iseghohime Ehighalua, a doctoral candidate at the American University, Washington College of Law, has posted The Tenth Amendment: A Reflection:

The tenth amendment is both a legal and political toolkit for proponents on opposite sides of the national government vis-a-vis state rights divide. These binary, indeed, multi-visionary visions pervaded the U.S. Constitution making process, thus, the Founding Fathers debated these and other ideas intensely before drafting the Constitution. As a measure of this polarization, some of the ideas and rights that did not make it to the Constitution were subsequently reflected in amendments. This was how the tenth amendment found its way into the Bill of Rights and is today considered part of the Constitution. In this essay, I unpack the history of the tenth amendment and how the Founding Fathers argued for its inclusion in the Constitution. I identified James Madison and Alexander Hamilton as the two outstanding Fathers who championed the fight. This essay will demonstrate that the tenth amendment will always be at the intersection of how the executive and the legislative branches interpret their powers, and how either of the branches will use it to justify or undermine the very concept of representative government. As the tenth amendment envisaged that powers not delegated to the federal government or prohibited by it to the states are reserved to the states and the people, it must be jealously guided ultimately by the people, since democracy is envisioned as a system of government of, by, and for the people. I argue that the people must remain vigilant, as eternal vigilance is the price of liberty.

--Dan Ernst.  H/t: Legal Theory Blog

Meese on Wickard and Antitrust

Alan J. Meese, William & Mary Law School, has posted Wickard Through an Antitrust Lens, which appeared in the William & Mary Law Review 60 (2019): 1336-1393:

For several decades, the Supreme Court employed the direct/indirect standard to police the boundary between mutually exclusive state and federal power over intrastate conduct affecting interstate commerce. Under this regime, Congress possessed exclusive authority over intrastate conduct that affected interstate commerce directly, leaving states with exclusive authority over intrastate conduct that produced only indirect effects. The Supreme Court read the direct/indirect standard into the Sherman Act during the 1890s, holding in United States v. E.C. Knight and other decisions that the statute only reached intrastate restraints that impacted interstate commerce directly. Impacts were direct, in turn, if the restraint exercised market power to the detriment of out-of-state consumers. Intrastate restraints that produced only indirect effects fell within the exclusive authority of the states.

Wickard v. Filburn famously jettisoned the direct/indirect standard in 1942, holding that Congress could reach any conduct that produced a “substantial effect” on interstate commerce, even if such effects were indirect or fortuitous. Later in the same decade, in Mandeville Island Farms v. American Crystal Sugar, the Court read Wickard’s substantial effects test into the Sherman Act, holding that the statute reached purely local restraints producing indirect but “substantial” impacts on interstate commerce.

Wickard offered three critiques of the direct/indirect standard, critiques echoed by Mandeville Island Farms. First, Wickard claimed that the Court had almost always applied the direct/indirect standard when reviewing Commerce Clause challenges to state legislation, only rarely employing the test to invalidate an Act of Congress as exceeding the scope of the Commerce power. Indeed, the Court claimed that only five post-E. C. Knight decisions had invalidated congressional statutes as exceeding the scope of the commerce power, three during a two year period (1935-36). Second, Wickard claimed that the direct/indirect standard was “mechanical” and obscured judicial inquiry into the actual economic impact of the conduct Congress sought to regulate. Third, Wickard claimed that decisions applying the direct/indirect standard during the first third of the 20th Century did so under the sway of the discredited E.C. Knight decision and had co-existed with a parallel set of decisions, beginning with the Shreveport Rate Case, that took a more expansive approach to congressional authority. This alleged doctrinal ambiguity attenuated the precedential force of decisions that had applied the direct/indirect standard. 

It is no surprise that Mandeville Island Farms and subsequent Sherman Act decisions drew upon Wickard when discerning the scope of the Sherman Act vis a vis local restraints. This essay “flips the script” and asks “what if” Wickard had looked to Sherman Act precedents for guidance regarding the scope of the Commerce power. The essay contends that the Court’s experience with application of the direct/indirect standard in the antitrust context undermines Wickard’s critiques of that regime. For instance, inclusion of the Court’s antitrust federalism case law more than doubles the number of pre-Wickard decisions that refused to apply a federal statute to conduct generating a substantial economic effect on interstate commerce, thus falsifying Wickard’s claim that only two decisions between E.C. Knight and the New Deal enforced limits on Congressional power. Moreover, the antitrust federalism decisions were not “mechanical” or otherwise insensitive to the actual economic effects of challenged conduct. Instead, each such decision reflected a fact-intensive effort to determine the actual impact of the conduct in question, asking whether the restraint visited harm on citizens in other states. Finally, the Court’s pre-Wickard antitrust federalism decisions rarely cited E. C. Knight, and then only for the purpose of distinguishing or narrowing the decision so as to allow the Sherman Act to reach intrastate transactions producing interstate harm. These decisions were fully consistent with the Shreveport Rate Case, which held that Congress could preempt state regulation of intrastate rates that threatened to “injure” interstate commerce, by “directly interfering” with interstate rates. Indeed and ironically, a thorough understanding of the Court’s pre-New Deal antitrust federalism decisions helps generate a more enduring and plausible rationale for the result in Wickard, a rationale that does no violence to the constitutional order that Wickard repudiated.

--Dan Ernst.  H/t: Legal Theory Blog

FJC's "Approaches to Federal Judicial History"

The Federal Judicial Center has just published Approaches to Federal Judicial History, edited by Gautham Rao, Winston Bowman and Clara Altman and downloadable here.  As Rao explains in his introduction:

This volume presents recent scholarship on the history of the federal court system. It builds on the symposium “The Federal Courts in American Historiography,” which convened at the Federal Judicial Center in the spring of 2016. The main historical themes of that scholarly meeting and of this volume are the practices and importance of the lower federal courts, the relationship between district and circuit courts and the Supreme Court, and the broader role of the federal court system in American economy and society.

Here’s the TOC:

Introduction by Gautham Rao

Part I: Historicizing the Judicial Branch
1.  The Indefinite Article: Historicizing the Judicial Branch by Winston Bowman
2.  The Handmaid of Justice: Power and Procedure in the Federal Courts by Kellen Funk
3.  Slavery and Emancipation in the Federal Courts, by Aaron Hall
4.  Writing a Court-Centered History of Administrative Governance by Joanna L. Grisinger

Part II: The Role of Lower-Court Histories
5.  Ordained and Established: The Role of Lower-Court Histories by Jake Kobrick
6.  All Rise: The Prospects and Challenges of Lower Federal Judicial Biography by Charles L Zelden
7.  The Federal Courts and Criminal Justice by Sara Mayeux

--Dan Ernst

Gardner on "Immigrant Sanctuary as the 'Old Normal': A Brief History of Police Federalism"

The Columbia Law Review has published "Immigrant Sanctuary as the 'Old Normal': A Brief History of Police Federalism," by Trevor George Gardner (Washington University School of Law). The abstract:

Three successive presidential administrations have opposed immi­grant-sanctuary policy, at various intervals characterizing state and local government restrictions on police participation in federal immigra­tion enforcement as reckless, aberrant, and unpatriotic. This Article finds these claims to be ahistorical in light of the long and singular his­tory of a field this Article identifies as “police federalism.” For nearly all of U.S. history, Americans within and outside of the political and juridi­cal fields flatly rejected federal policies that would make state and local police subordinate to the federal executive. Drawing from Bourdieusian social theory, this Article conceptualizes the sentiment driv­ing this longstanding opposition as the orthodoxy of police auton­omy. It explains how the orthodoxy guided the field of police federalism for more than two centuries, surviving the War on Alcohol, the War on Crime, and even the opening stages of the War on Terror. In construct­ing a cultural and legal history of police federalism, this Article pro­vides analytical leverage by which to assess the merits of immigrant-sanctu­ary policy as well as the growing body of prescriptive legal scholar­ship tending to normalize the federal government’s contemporary use of state and local police as federal proxies. More abstractly, police feder­alism serves as an original theoretical framework clarifying the struc­ture of police governance within the federalist system.

Read on here.

ASLH Pre-Conference Symposia on Local Government and African Legal History

We would like to alert LHB readers to two "pre-conference" symposia at the November 2019 annual meeting of the American Society for Legal History.  Both will be on Thursday, November 21, immediately before the events usually demarcating the start of the annual meeting.

The first is a Symposium on Legal History and the Persistent Power of State and Local Governments:

On Thursday, November 21, immediately before the main conference begins, the American Society for Legal History (with the support of Stanford Law School and Colgate University) is hosting a half-day symposium on the legal history of state and local governments and the persistence of their power across United States history. The symposium will consist of a range of presentations and discussions. Lunch will be made available to those attending.

The workshop will take place in the Conference Hotel. Anyone registered for the main conference is welcome to register for the symposium, though space is limited to thirty-four attendees. Click here to register for the symposium.

The second is an African Legal History Symposium:

On Thursday, November 21, immediately before the main conference begins, the American Society for Legal History is hosting a symposium on African Legal History. This symposium will feature four panels over the course of the day with twenty-two presentations.

This symposium is open to the public and ASLH members are warmly welcomed to attend. Click here to register for the symposium.

 And if you haven't registered for the annual meeting itself, it's time!

--Dan Ernst

Hays's "States in American Constitutionalism"

Bradley D. Hays, Union College, has published States in American Constitutionalism: Interpretation, Authority, and Politics (Routledge, 2019):

States in American Constitutionalism: Interpretation, Authority, and Politics examines the often overlooked role that states have played in the development and maintenance of American constitutionalism by examining the purpose and effect of state resolutions on national constitutional meaning. From colonial practices through contemporary politics, subnational governments have made claims about what national constitutional provisions and principles ought to mean, fashioned political coalitions to back them, and asserted their authority to provoke constitutional settlement. Yet, this practice has been far from static. Political actors have altered the practice in response to their interpretive objectives and the political landscape of the day. States in American Constitutionalism explains both the development of the practice and the way each innovation to the practice affected subsequent iterations.

Hays presents a series of case studies that explore the origins of the practice in colonial constitutionalism, its function in the early Republic, subsequent developments in antebellum and twentieth century politics, and contemporary practice in the first two decades of the twenty-first century.

States in American Constitutionalism will be of great interest to students and academics interested in constitutional law and politics, political and constitutional development, and federalism.

 --Dan Ernst

Schwartz on Jackson's Bank Veto and McCulloch

David S. Schwartz, University of Wisconsin Law School, has posted Defying McCulloch? Jackson's Bank Veto Reconsidered, which is forthcoming in volume 71 of the Arkansas Law Review (2019):

President Andrew Jackson (LC)

Andrew Jackson's 1832 veto of the bill to recharter the Second Bank of the United States is conventionally understood as a monumental rejection of judicial supremacy, in which the President defied the Supreme Court's constitutional ruling in McCulloch v. Maryland and asserted the right of the president to interpret the Constitution independently. Constitutional scholars view the Bank Veto as the archetypal statement of "departmentalism," the view that each branch of the government has the power and duty to interpret the Constitution for itself. As revisionists have pointed out, however, that extreme characterization of the Bank Veto is plainly wrong: by saying only that the Bank was constitutional, McCulloch necessarily left discretionary space on policy grounds to reject a national bank. And by leaving the "degree of necessity" to congressional determination, McCulloch allows legislators " and the President, who acts in a legislative capacity when considering whether to sign a bill into law " to decide that a legislative proposal is unconstitutional for reasons not necessarily discussed by the Supreme Court. In this article, I argue that both accounts are radically incomplete. The Bank Veto Message, ghost-written in large part by future Chief Justice Roger B. Taney, was a lawyerly doctrinal text, offering a road map for an impending Taney Court jurisprudence of states' rights that does not defy, but subtly undermines McCulloch's conception of implied federal powers without overruling McCulloch.

---Daniel Ernst

Ablavsky on the Origins of Dual Federalism

Gregory Ablavsky, Stanford Law School, has posted Empire States: The Coming of Dual Federalism, which is forthcoming in the Yale Law Journal:

This Article offers an alternate account of federalism’s late eighteenth-century origins. In place of scholarly and doctrinal accounts that portray federalism as a repudiation of models of unitary sovereignty, it emphasizes the federalist ideology of dual sovereignty as a form of centralization — a shift from a world of diffuse sovereignty to one where authority was increasingly imagined as concentrated in the hands of only two legitimate sovereigns.

In making this claim, the Article focuses on two sequential late eighteenth-century transformations. The first concerned sovereignty. Pre-Revolutionary ideas about sovereignty reflected early modern corporatist understandings of authority as well as imperial realities of uneven jurisdiction. But the Revolution elevated a new understanding of sovereignty in which power derived from the consent of a uniform people. This conception empowered state legislatures, which, throughout the 1780s, sought to use their status under new state constitutions as the sole repositories of popular authority to subordinate competing claims to authority made by corporations, local institutions, Native nations, separatist movements.

The second shift came with the drafting and ratification of the U.S. Constitution, which bolstered federal authority partly in order to protect state authority against internal competitors, an aim reflected in the Guarantee and New State Clauses. Ultimately, the Constitution both limited and enhanced state authority; it entrenched a framework of dual sovereignty. After ratification, competitors to state sovereignty were increasingly constrained to appeal to some federal right or power. What had previously been contests among supposedly coequal sovereigns—what modern scholars would call horizontal federalism — became a question of vertical federalism, an issue of whether federal authority would vindicate states or their opponents.

Although the Article concludes with some implications of this history for present-day federalism doctrine and theory, its primary contribution is descriptive. Judges and lawyers routinely and almost unthinkingly invoke localism and power diffusion as the historical values of federalism. Yet the history explored here challenges whether these near-universal assumptions about federalism’s aims actually reflect what federalism was designed to accomplish.

Schwartz on Implied Commerce Powers

David S. Schwartz, University of Wisconsin Law School, has posted An Error and an Evil: The Strange History of Implied Commerce Powers, which is to appear in the American University Law Review 68 (2019): 927-1014:

An underspecified doctrine of implied "reserved powers of the states" has been deployed through U.S. constitutional history to prevent the full application of McCulloch v. Maryland's concept of implied powers to the enumerated powers"in particular, the Commerce Clause. The primary rationales for these implied limitations on implied federal powers stem from two eighteenth and nineteenth century elements of American constitutionalism. First, the inability of pre-twentieth century judges to conceptualize a workable theory of concurrent federal and state power made it seem constitutionally necessary to limit the Commerce Clause and to refrain from applying the concept of implied powers to the Commerce Clause in order to preserve a substantial scope for state regulation. Second, because slavery so obviously fed into interstate and international trade, a robust application of implied powers to the Commerce Clause could naturally lead to a congressional power to "interfere with" the institution of slavery within the states. Antebellum judges and political leaders saw the implied limitation of such a power as an inescapable element of the constitutional bargain. These twin supports of the implied limitation concept have been eliminated from American constitutional law, yet the concept persists, with potentially significant consequences. In National Federation of Independent Business v. Sebelius, the 2012 Affordable Care Act case, for example, five Justices maintained that there is an implied limitation against regulating economic "inactivity." The justification offered for this is an abstract concept of federalism that is largely detached from the once powerful, but now defunct, principles of constitutional politics that sustained it.

Miller on Brandeis in Erie and in INS v. AP

Joseph Scott Miller, University of Georgia School of Law, has posted Brandeis’s I.P. Federalism: Thoughts on Erie at Eighty, forthcoming in the Akron Law Review:

Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associated Press, the misappropriation case one can find in virtually every i.p. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the i.p. context? This piece, prepared in connection with an “Erie at Eighty” conference in fall 2018, makes the case that the answer to both questions is “yes.”

H/t: Legal Theory Blog