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Abstract:
Commentators generally regard federalism and separation of powers as distinct features of the constitutional structure. In reality, these doctrines were designed to work together to further the same goals: to avoid tyranny and to preserve individual liberty. Professor Thomas Merrill overlooks this connection in a recent attempt to explain the Supreme Court's decision making process under Chief Justice William Rehnquist. Professor Merrill maintains that there have been two Rehnquist Courts: one from 1986 to 1994, and another from 1994 to the present. In Professor Merrill's view, the first Rehnquist Court focused on social issues - such as abortion, affirmative action, and school prayer - with relatively few important doctrinal innovations in these areas. The second Rehnquist Court, by contrast, focused on constitutional federalism, including the scope of federal power under the Commerce Clause and Section 5 of the Fourteenth Amendment, Tenth Amendment limitations on federal power, and state sovereign immunity from private lawsuits reflected in the Eleventh Amendment. Unlike the first Rehnquist Court, the second has generated a number of important innovations. Professor Merrill also suggests that Justice Antonin Scalia made a strategic choice to shift his priorities from social issues to constitutional federalism circa 1994. This hypothesis is unpersuasive. As Professor Merrill acknowledges, Justice Scalia had little occasion to consider questions of constitutional federalism before he was appointed to the Supreme Court. Thus, it is not surprising that Justice Scalia did not arrive on the Court with a full-fledged federalism agenda or that he preferred to wait for briefing and argument before reaffirming an important precedent like Hans v. Louisiana. From the beginning, however, Justice Scalia has been a strong proponent of constitutional federalism. In fact, with only one arguable exception, Justice Scalia has voted to uphold the constitutional prerogatives of the states in every major federalism case decided since he joined the Court. Justice Scalia does appear to have an agenda of sorts in federalism cases, although not the one that Professor Merrill suggests. Justice Scalia's goal in these cases is to uphold the original constitutional structure in order to respect the Founders' constitutional design and to protect individual liberty. Professor Merrill acknowledges Justice Scalia's interest in the constitutional separation of powers, but fails to recognize the connection between separation of powers and federalism. Neither feature of the constitutional structure was meant to be an end in itself. Rather, both separation of powers and federalism were designed to check government power and to secure individual liberty. Thus, even though Justice Scalia had little occasion to consider questions of constitutional federalism before he was appointed to the Supreme Court, it is not surprising that he quickly came to regard federalism - like separation of powers - as an essential element of the Founders' constitutional design.

Scalia,Merrill,federalism,Rehnquist,separation of powers

Abstract:
Two hundred years have passed since the Supreme Court's decision in Marbury v. Madison, yet debate continues over the origins and legitimacy of judicial review. Although modern commentators generally accept judicial review with little or no reservation, some remain skeptical. One of the strongest and most sustained challenges comes from Larry Kramer, who has recently argued that the Founders did not authorize judicial review of the scope of federal powers under the original Constitution. At the same time, Kramer maintains that the Founders expected judicial review both to prevent states from undermining federal supremacy and to enforce individual rights. Such attempts to divide judicial review, however, are inconsistent with the constitutional text and contradict key assumptions held by the Founders. The relevant materials suggest that judicial review is a unitary doctrine under the Supremacy Clause that requires courts to treat all parts of the Constitution as "the supreme Law of the Land" and to disregard both state and federal law to the contrary.

There are at least two difficulties with Professor Kramer's proposed dichotomy. First, Kramer's attempt to separate judicial review of state law from judicial review of federal statutes is inconsistent with the text of the Supremacy Clause. The Clause recognizes only three forms of federal law as "the supreme Law of the Land:" This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States." By its terms, therefore, the Clause requires courts to prefer federal statutes to contrary state law only if the federal statute is consistent with "this Constitution." In other words, courts have no warrant to enforce unconstitutional federal statutes over contrary state law. This is true whether the federal statute in question violates the Constitution's "provisions delegating powers" or its "rights-bearing provisions." Thus, in such cases, the Supremacy Clause explicitly conditions judicial review of state law on judicial review of federal statutes.

Second, Professor Kramer's further attempt to distinguish judicial review under "the rights-bearing provisions" of the Constitution from judicial review under the "provisions delegating powers" contradicts widespread assumptions at the Founding about the nature and source of individual rights vis-a-vis the federal government. Federalists and Antifederalists agreed that individual rights would be secured - at least in part - by the Constitution's limited delegation of powers to the federal government. Their disagreement was whether this feature alone would suffice to protect individual liberty.

The Antifederalists argued that a Bill of Rights was necessary to guarantee essential rights. The Federalists countered that a Bill of Rights was both unnecessary and dangerous. It was "unnecessary" because the federal government lacked power to interfere with the rights at issue. It was "dangerous" because it might erroneously imply that the federal government had power to invade other rights retained by the people. The Founders compromised by including the Ninth and Tenth Amendments in the Bill of Rights. As discussed below, these amendments negated any suggestion that the enumeration of rights implied the availability of federal power to invade other rights, and thus confirm that the Founders equated individual rights with the limited scope of federal powers. From this perspective, Professor Kramer's suggestion that courts enforce "the rights-bearing provisions" of the Constitution but not the "provisions delegating powers" is anachronistic because it ignores the common purpose of these provisions and would create the very danger that the Founders sought to avoid.

The Founders' understanding that the Constitution secures individual rights by limiting federal power has important implications for judicial review. Courts cannot - as some commentators urge - simply enforce the Bill of Rights but decline to police the limits of federal power. Given the Founders' understanding of the source of individual rights vis-a-vis the federal government, courts should take a unitary approach to judicial review under the Supremacy Clause and enforce both the Bill of Rights and the limits of federal power. Only then could courts uphold all of the rights "retained by the people."

judicial review,marbury,madison,ninth amendment,federalism,supremacy clause,bill of rights,Larry Kramer,antifederalists

Abstract:
Today, it is widely accepted that the Constitution authorizes courts to review and invalidate state laws that conflict with federal statutes. At the same time, prominent commentators and even some judges maintain that courts should not seriously review the constitutionality of federal statutes alleged to exceed the scope of Congress' enumerated powers. In their view, the constitutional structure protects the states (and thereby reduces the need for judicial review of federal power), but establishes no comparable safeguards to deter states from interfering with federal prerogatives. Contrary to this position, there is an express textual basis for judicial review of federal statutes alleged to exceed Congress' enumerated powers. The Supremacy Clause establishes a rule of decision for courts adjudicating the rights and duties of parties under both state and federal law. Under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause. The Clause, in turn, designates as the supreme Law of the Land only those Laws of the United States . . . made in Pursuance of the Constitution. If a federal statute satisfies this condition, courts must apply the statute notwithstanding contrary state law. If the federal statute fails this condition, however, it does not qualify as the supreme Law of the Land and courts remain free to apply state law. Thus, in order to apply the Supremacy Clause, courts must necessarily consider and resolve challenges to the constitutionality of federal statutes. The text, history, and structure of the Constitution confirm that the Supremacy Clause authorizes judicial review of federal statutes alleged to exceed the scope of federal power. The Founders considered three alternative mechanisms for resolving conflicts between state and federal law: coercive military force, congressional power to negative state laws, and adjudication under the Supremacy Clause. The decision to enlist courts - rather than Congress or the President - indicates that the Founders preferred to treat conflicts between state and federal law as judicial, rather than political questions. In addition, by expressly conditioning the supremacy of federal statutes on their constitutionality, the Supremacy Clause reassured the states that courts (both federal and state) would keep the federal government within the bounds of its assigned powers. Thus, in effect, the Clause reserves all remaining powers to the states, or to the people. These conclusions find support in the Supreme Court's early invocation of the Supremacy Clause to explain judicial review of federal statutes in cases like McCulloch v. Maryland and Gibbons v. Ogden.

federalism,judicial review,supremacy clause,McCulloch,Gibbons,Larry Kramer,Wechsler

Abstract:
The constitutional rationale of Erie Railroad Co. v. Tompkins has remained elusive for almost seventy years. Three decades ago, Paul Mishkin argued in a brief but influential article that Erie rests on "constitutional principles which restrain the power of the federal courts to intrude upon the states' determination of substantive policy in areas which the Constitution and Congress have left to state competence." Professor Mishkin wrote his article in response to John Hart Ely's insightful analysis of Erie published earlier the same year. Mishkin understood Erie as imposing a constitutional restraint on the federal courts, but read Ely as treating "the Constitution as relevant only in terms of Congress' power to displace state substantive law" and not as an independent restriction on "the power of the federal courts to do so." Mishkin grounded his contrary understanding "on the structure established by the Constitution whereby the states, and their interests as such, are represented in the Congress but not in the federal courts." Invoking the separation of powers, Mishkin concluded that "the Constitution bears not only on congressional power but also imposes a distinctive, independently significant limit on the authority of the federal courts to displace state law."

Professor Mishkin's article remains a key reference in the field because scholars continue to debate the precise contours - and even the existence - of the constitutional basis for the Supreme Court's decision in Erie. Mishkin's unique contribution was to link federalism with the constitutional separation of powers. This account of Erie's constitutional rationale is insightful and, in my view, correct. It may be fortified, however, by an additional structural argument that ties Erie directly to the Supremacy Clause. That Clause recognizes only the "Constitution," "Laws," and "Treaties" as "the supreme Law of the Land," and thus incorporates three distinct sets of federal lawmaking procedures found elsewhere in the Constitution. By design, all of these procedures safeguard federalism by requiring the participation and assent of the states or their representatives in the Senate. Accordingly, the constitutional structure strongly suggests that the Supremacy Clause establishes the exclusive basis for disregarding state law, and that more expansive judicial doctrines like Swift are unconstitutional. Reliance on these features of the constitutional structure is implicit in the Erie opinion and provides formal substantiation of Professor Mishkin's sound intuitions about Erie, the separation of powers, and federalism.

Erie, Swift, Mishkin, Supremacy Clause, political safeguards of federalism

Abstract:
The Supreme Court recently resolved a longstanding split in its Eighth Amendment jurisprudence when it declared that the cruel and unusual punishments clause delegates to federal courts broad discretion to exercise independent judgment to evaluate the propriety of punishments authorized by state law. The Court claimed authority to displace a punishment - however widely employed - based on the Court's own assessment of the penological effectiveness of the punishment and the moral culpability of the particular class of offenders. Notably, the Court did not, and has not in the modern era, attempted to justify its approach in terms of either the text or the history of the Eighth Amendment. Drawing on the broader lessons of the constitutional structure, this paper argues that the Court's assumption of broad discretion to displace state law contradicts the implications of constitutionally prescribed lawmaking procedures, the political safeguards of federalism, and the Supremacy Clause. In this regard, the Court's current approach to the Eighth Amendment ignores the lessons of prominent historical episodes in which federal courts first embraced, and then abandoned as unconstitutional, similar assumptions of broad judicial discretion - most notably, the early controversy surrounding federal common law crimes and the later embrace of so-called general common law under the Swift doctrine. Absent clear evidence that a particular constitutional text, such as the Eighth Amendment, authorizes this degree of judicial discretion, the constitutional structure - as illuminated by these past instances of discretion and retreat - counsels against it.

Roper v. Simmons, Eighth Amendment, cruel and unusual, juvenile death penalty, independent judgment, judicial discretion, constitutional structure, Supremacy Clause, political safeguards of federalism, Swift v. Tyson, Erie R. Co. v. Tompkins, federal common law crimes, Founders, Publius, Brutus

Abstract:
Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' "perfect rights" (or close analogues) under the law of nations as an incident of political branch recognition of foreign nations, and in order to restrain the judiciary and the states from giving other nations just cause for war against the United States. Rather than viewing enforcement of the law of nations as an Article III power to fashion federal common law, federal courts have instead applied rules derived from the law of nations as a way to implement the political branches' Article I and Article II powers to recognize foreign nations, conduct foreign relations, and decide momentous questions of war and peace. This allocation of powers approach best explains the most important federal cases involving the law of nations across American history. This Article does not attempt to settle all questions of how customary international law interacts with the federal system. It does aspire, however, to recover largely forgotten historical and structural context crucial to any proper resolution of such questions.

act of state doctrine, admiralty, Alien Tort Statute, arising under jurisdiction, ATS,Article III,customary international law,Erie,federal common law,federalism,foreign relations,international law,law of nations,Paquete Habana,perfect rights,prize,Sabbatino,separation of powers,Sosa,Supremacy Clause

Abstract:
This article addresses the problem that federal courts face when they are asked to adjudicate cases presenting novel or unsettled questions of state law. The article suggests that the Supreme Court's decision in Erie Railroad Co. v. Tompkins rests on constitutional principles of judicial federalism, and was facilitated by the Court's application of legal positivism to state judge-made law. The article goes on to evaluate several competing methods for ascertaining state law, including prediction, abstention, the static approach, and certification. The article concludes that certification best implements the principles of judicial federalism underlying Erie, and thus counsels federal courts to employ a presumption in favor of certification.