A Hidden History of Affirmative Obligation
26 Pages Posted: 25 Apr 2008
This article is one of a series of contributions part of a forthcoming symposium to be published by the Tulsa Law Review honoring Laurence H. Tribe. I take as my point of departure articles in print in 1977 that Tribe and Frank Michelman wrote addressing the then-recent Supreme Court decision in National League of Cities v. Usery. Each reached essentially the same conclusion: National League of Cities was, at bottom, a decision best justified by reference to an implicit constitutional obligation to address basic needs borne by state and local governments. This was a controversial argument - it quickly became, for example, one prominent foil for Daniel Farber's essay Against Brilliance. I revisit the efforts of Tribe, Michelman, and Farber, adding a close look at the work of William Rehnquist during the same period. Justice Rehnquist wrote the National League of Cities opinion. His work around this time suggests a way of reading the Tribe and Michelman articles differently - less efforts at explaining what Rehnquist was doing as contesting - each in interestingly different ways - characteristic aspects of Rehnquist's radically critical approach to constitutional law during this period. As it turns out, the Supreme Court's 2007 decision in Massachusetts v. EPA revives some of the questions raised by National League of Cities, and the Tribe and Michelman discussions. I consider at some length a genealogy that links the standing discussion in the Massachusetts majority opinion with decisions running across much of the nineteenth and twentieth centuries that point to a duty to protect arguably acquiring constitutional status in the language of the Fourteenth Amendment. It is possible that Tribe and Michelman glimpsed, however obliquely, an important element in constitutional law easier to articulate now than in 1977.
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