{"title":"Federalism and the Generality Problem in Constitutional Interpretation","authors":"J. Manning","doi":"10.2139/SSRN.2849593","DOIUrl":null,"url":null,"abstract":"In recent years, the Supreme Court has embraced a freestanding federalism that is not tied to any particular clause of the Constitution. Rather, because multiple clauses assume the continued existence of states and set up a government of limited and enumerated powers, the Court has inferred that such provisions collectively convey a purpose to establish federalism and to preserve a significant degree of state sovereignty. The Court has treated that general background purpose as a warrant to derive specific but unenumerated limitations on federal power – in particular, a federalism clear statement rule, an anticommandeering principle, and broad state sovereign immunity from suit in state courts. This Article argues that the interpretive methodology underlying the new federalism cases cannot readily be squared with the process insights clearly articulated by the Court in its recent statutory interpretation cases, which endorse the related propositions that lawmaking entails compromise, that enacted texts select means as well as ends, and that abstracting from a law’s specific means to its general aims dishonors the level of generality at which lawmakers choose to legislate. Despite evident differences between statutes and the Constitution, this Article maintains that where, as in the new federalism cases, the Court purports to attribute its holdings to decisions made by the founders pursuant to the processes prescribed by Articles V or VII, its interpretive approach should proceed from the premise that constitutionmaking involves process considerations analogous to those that characterize legislation. Constitutionmaking entails disagreement and compromise by stakeholders who have the right to insist upon compromise as the price of their assent. Moreover, the U.S. Constitution itself represents “a bundle of compromises” and, in the particular area of interest here, quite elaborately spells out the means by which power is to be divided between the federal and state governments. Indeed, emphasizing that federalism was an innovation of our Constitution, this Article maintains that the specific means chosen to implement our form of concurrent sovereignty in fact define the concept of federalism and that, contrary to the Court’s recent cases, there is no freestanding federalism.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"122 1","pages":"2003-2069"},"PeriodicalIF":3.5000,"publicationDate":"2009-10-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"16","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Harvard Law Review","FirstCategoryId":"90","ListUrlMain":"https://doi.org/10.2139/SSRN.2849593","RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q1","JCRName":"LAW","Score":null,"Total":0}
引用次数: 16
Abstract
In recent years, the Supreme Court has embraced a freestanding federalism that is not tied to any particular clause of the Constitution. Rather, because multiple clauses assume the continued existence of states and set up a government of limited and enumerated powers, the Court has inferred that such provisions collectively convey a purpose to establish federalism and to preserve a significant degree of state sovereignty. The Court has treated that general background purpose as a warrant to derive specific but unenumerated limitations on federal power – in particular, a federalism clear statement rule, an anticommandeering principle, and broad state sovereign immunity from suit in state courts. This Article argues that the interpretive methodology underlying the new federalism cases cannot readily be squared with the process insights clearly articulated by the Court in its recent statutory interpretation cases, which endorse the related propositions that lawmaking entails compromise, that enacted texts select means as well as ends, and that abstracting from a law’s specific means to its general aims dishonors the level of generality at which lawmakers choose to legislate. Despite evident differences between statutes and the Constitution, this Article maintains that where, as in the new federalism cases, the Court purports to attribute its holdings to decisions made by the founders pursuant to the processes prescribed by Articles V or VII, its interpretive approach should proceed from the premise that constitutionmaking involves process considerations analogous to those that characterize legislation. Constitutionmaking entails disagreement and compromise by stakeholders who have the right to insist upon compromise as the price of their assent. Moreover, the U.S. Constitution itself represents “a bundle of compromises” and, in the particular area of interest here, quite elaborately spells out the means by which power is to be divided between the federal and state governments. Indeed, emphasizing that federalism was an innovation of our Constitution, this Article maintains that the specific means chosen to implement our form of concurrent sovereignty in fact define the concept of federalism and that, contrary to the Court’s recent cases, there is no freestanding federalism.
期刊介绍:
The Harvard Law Review is a student-run organization whose primary purpose is to publish a journal of legal scholarship. The Review comes out monthly from November through June and has roughly 2,500 pages per volume. The organization is formally independent of the Harvard Law School. Student editors make all editorial and organizational decisions and, together with a professional business staff of three, carry out day-to-day operations. Aside from serving as an important academic forum for legal scholarship, the Review has two other goals. First, the journal is designed to be an effective research tool for practicing lawyers and students of the law. Second, it provides opportunities for Review members to develop their own editing and writing skills. Accordingly, each issue contains pieces by student editors as well as outside authors. The Review publishes articles by professors, judges, and practitioners and solicits reviews of important recent books from recognized experts. All articles — even those by the most respected authorities — are subjected to a rigorous editorial process designed to sharpen and strengthen substance and tone.