Last Thursday I posted on the oddity that the Idaho legislature appears to have the power to prevent the United States from entering into a multilateral treaty governing transnational enforcement of child support obligations. As I explained, the state's veto power is a product of the anti-commandeering doctrine that the U.S. Supreme Court announced in two 1990s cases, forbidding Congress from requiring states to enact or enforce legislation. In the course of addressing the question of whether the commandeering prohibition applies to treaty obligations and statutes implementing treaty obligations, I noted that I think the anti-commandeering doctrine--which is not based on any express provision of the Constitution--is misguided. In particular, I approvingly summarized the historical argument made by the dissenters in the anti-commandeering cases as follows:
Congress had the power to "commandeer" under the Articles of Confederation; nothing in the Constitution expressly forbids that means to Congress; in general the Constitution gave Congress more, not fewer, powers than Congress enjoyed under the Articles; and therefore, in my view if Congress is regulating in the area of one of its enumerated powers, then measures that commandeer the states are (absent some other problem) necessary and proper to the exercise of that power.I have setup Twitter to automatically tweet a URL and title for each of my blog posts and shortly after Thursday's post went up, Prof. Randy Barnett tweeted to me about it. He raised what I regard as an interesting set of questions that are not usefully discussed in 160-character snippets, so, after reproducing our exchange, I'll elaborate at some greater length. Here's our exchange:
BARNETT: How about returning to original scope of Congress's powers? Then less need for anti-commandeering doctrine. Deal?
DORF: If we return to the economic conditions that prevailed at the Founding, I'll take that deal!
BARNETT: That's cheating. You don't get to rely on Articles of Confederation, etc. then. Can't have it both ways.
DORF: AoC shed light on orig understanding. Changed circumstances bear on how it applies 2day. Follow-up post nxt wk.
BARNETT: Dorf in short: follow original understanding when it suits you? And expansive reading of Congressional power is another change in circumstances. Can everyone play?
DORF: L Lessig proposed that idea in 1995 Sup. Ct. Rev. 125. It's not crazy but I disagree. I'll discuss Monday.It is now Monday, and thus, as promised, I shall discuss. I'll begin by unpacking exactly what is going on in the foregoing, somewhat cryptic, exchange.
Barnett's proposed "deal" rests on the tacit acknowledgment that the anti-commandeering doctrine is not rooted in the Constitution. However, he also thinks the Court erred by departing from the Founding-Era understanding of the Commerce Clause--which, he believes, was much narrower than the current understanding. Thus, he is willing to trade away a made-up constitutional limit serving to limit the national government in favor of the states for a genuine but abandoned constitutional limit.
My initial response challenged Barnett's equation of the original understanding with the contemporary implications of the Commerce Clause. I noted that the expansive view of the Commerce Clause in the modern era is justified as a response to changed circumstances. Barnett then cried foul. If I was going to rely on a historical argument about the meaning of the Constitution that rested on juxtaposing it with the Articles of Confederation, then I was "cheating" by trying to "have it both ways," or as he concluded, to follow the original understanding only when I chose to. Herewith, my objections to Barnett's assumptions and arguments:
(1) Barnett misunderstands what I was saying. Originalists think that the meaning of any provision of the Constitution simply is the original understanding. Nonoriginalists like me mostly think that the original understanding is an important starting point in construing the constitutional text, but not necessarily the end point. In the anti-commandeering cases, the majority (authored by Justice O'Connor in New York v. United States and by Justice Scalia in Printz v. United States) offered a historical, i.e., originalist argument for the anti-commandeering principle. Accordingly, the dissenters--who offered the counterargument that begins with the Articles of Confederation--were responding that the originalist argument for the anti-commandeering principle fails on its own terms. Neither they nor I said or assumed that one must always be bound by the original understanding, regardless of intervening changes in the world. Thus, my discussion of the transition from the Articles of Confederation did not commit me to originalism in all matters relating to federalism or anything else.
(2) To be sure, Justice O'Connor's New York opinion also offered a functional argument for the anti-commandeering rule: She said that it promotes accountability by ensuring that the people of each state know which government to hold responsible for unpopular actions. But (for reasons I won't detail here because they're tangential) I find that argument unpersuasive and, in any event, there is a powerful functional argument that goes in the other direction, as I noted at the end of the post. To wit, forbidding the federal government from commandeering creates incentives for greater federalization, not less, and so the anti-commandeering rule ends up undermining the interests of the states. One can disagree on the functional point, but the fact that I was making a functional argument should have been a clue to the fact that I wasn't resting my opposition to the anti-commandeering principle on purely originalist grounds. And thus there is no hypocrisy in my rejection of a strictly originalist understanding of the Commerce Clause.
(3) Moreover, I deny that the modern understanding of the Commerce Clause is inconsistent with the original understanding, at least if by "original understanding" one means what Barnett himself typically means when he talks about the original understanding, namely the original semantic meaning of the language rather than the concrete expected applications. The argument for the proposition that the scope of regulable activity has been enlarged even as the meaning of interstate commerce has remained the same is very familiar in constitutional jurisprudence, and it's exactly the one I invoked by referring to "changed circumstances." The movement from a craft-based economy to one of mass manufacturing that began in the middle of the 19th century made the notion of purely local economic activity untenable; thus, even if one retains the original semantic meaning of interstate commerce as commerce that concerns more than one state, in the modern world that means just about all economic activity. And that is in fact how every Justice to sit on the Supreme Court in the last 75 years--excepting only Clarence Thomas--has understood the modern doctrine. Barnett can resist this conclusion by equating the meaning of the Commerce Clause with the framing generation's concrete expected applications, but then he would be a "new" originalist when it suits him and an "old" originalist when that suits him.
(4) Fun though it is to execute a jujitsu move and show that Barnett is the real hypocrite here, I won't play that game. Barnett can escape the charge of inconsistency by claiming that the original semantic meaning of "Commerce . . . among the several States" included trade rather than manufacturing. I would say he's wrong or that, if he's right, the interconnectedness of modern supply chains enable Congress to regulate manufacturing and the like under the Necessary & Proper Clause, but that's a bigger debate that I'm not interested in having. I'll leave it to the liberal originalists like Jack Balkin to fight the likes of Barnett on his own turf.
(5) I want to turn instead to Barnett's apparently sarcastic suggestion that if changed circumstances justify a broader construction of the Commerce Clause, that broader construction is itself a changed circumstance that justifies the Court in creating the anti-commandeering doctrine. I don't read Barnett to have been making this as a serious argument. He seems to have meant it as a way of mocking what he took to be my position, although it's hard to tell exactly what anybody means on Twitter. In any event, even if Barnett meant the point as a reductio, it is in fact an idea worth considering.
(6) And indeed, Larry Lessig proposed exactly this idea 20 years ago in the pages of the Supreme Court Review in an article titled Translating Federalism. (The article is available via JSTOR but you need a subscription or to pay.) There Lessig suggested that, in light of the changed economic conditions that rendered the enumerated powers a failure as a means of preserving the balance between state and national power, the Court might be justified in making up other means of limiting the federal government in favor of the states, and that the anti-commandeering doctrine could be such a means.
I think Lessig's basic move is sound, as his core example illustrates. At the Founding, the Fourth Amendment was thought to protect privacy via a no-trespass rule. Absent an invasion of a property interest, there was no "search." But modern eavesdropping technology gave the government greater capacity to invade privacy without invading property, and so Lessig thinks that Justice Brandeis was right in his dissent in Olmstead v. United States to treat electronic eavesdropping as a Fourth Amendment search, even absent a property invasion. It's possible to reach that result via semantic originalism, I suppose, by treating the "meaning" of "search" as quite plastic, so that the property rule is only part of the "construction," not the meaning of the constitutional text. But Lessig, writing before the full flowering of semantic originalism, instead chose the metaphor of translation. His idea was that to give effect to the core purpose of the Fourth Amendment, the modern interpreter must move beyond the original understanding.
As I said, I think this view is sound in principle. My quarrel is with the suggestion that an anti-commandeering rule really does implement principles of federalism. I would also quarrel with the idea that the modern Court ought to worry much about ensuring that principles of federalism receive robust judicial protection, both because political safeguards are largely up to the task and because I read the Civil War and the Reconstruction Amendments as a sufficiently important break with the Founding Era understanding of the proper balance between state and federal authority, that any post-Reconstruction effort to preserve a state-federal balance should strive to preserve one that tilts much more to the federal side than it did at the Founding.
But, as I said, these are disagreements with how Lessig carried out the enterprise that Barnett now (apparently and tacitly) ridicules. The basic enterprise itself makes sense.