78 Pages Posted: 2 Mar 2012 Last revised: 22 Mar 2013
Date Written: February 28, 2012
Coming in the midst of the Rehnquist Court’s federalism revolution, Printz v. United States held that federal commandeering of state executive officers is “fundamentally incompatible with our constitutional system of dual sovereignty.” The Printz majority’s discussion of historical evidence, however, inverted Founding-era perspectives. When Federalists such as Alexander Hamilton endorsed commandeering during the ratification debates, they were not seeking to expand federal power. Quite the opposite. The Federalists capitulated to states’ rights advocates who had recently rejected a continental impost tax because Hamilton, among others, insisted on hiring federal collectors rather than commandeering state collectors. The commandeering power, it turns out, was an integral aspect of the Anti-Federalist agenda because it facilitated federal use of state and local officers, thus ensuring greater local control over federal law enforcement and averting the need for a bloated federal bureaucracy. These priorities carried over into the First Congress, where Anti-Federalists were among the most vehement defenders of the federal power to commandeer state executive and judicial officers. Ironically, though understandably when viewed in context, it was Federalists who first planted the seeds of the anticommandeering doctrine. Incorporating recently uncovered sources and new interpretations, this Article aims to significantly revise our understanding of Founding-era attitudes towards federal commandeering of state officers. Moreover, the Article explains why early Congresses generally shunned the use of state officers and how this custom combined with shifting political priorities to quickly erode what once had been a strong consensus favoring commandeering’s constitutionality.
Keywords: constitutional law, originalism, commandeering
JEL Classification: K19, K30
Suggested Citation: Suggested Citation
Campbell, Jud, Commandeering and Constitutional Change (February 28, 2012). Yale Law Journal, Vol. 122, p. 1102, 2013. Available at SSRN: https://ssrn.com/abstract=2012744 or http://dx.doi.org/10.2139/ssrn.2012744