Reconciling textualism and federalism: The proper textual basis of the Supreme Court's tenth and eleventh amendment decisions

Northwestern University Law Review

Volumn 93, Issue 3, 1999, Pages 819-873

  Rappaport, Michael B ^a  

^a NONE

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EID: 0040414543     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (234)

1. See Printz v. United States, 117 S. Ct. 2365 (1997); City of Boerne v. Flores, 117 S. Ct. 2157 (1997); Idaho v. Coeur d'Alene Tribe of Idaho, 117. S. Ct. 2028 (1997); Seminole Tribe v. Florida, 517 U.S. 44 (1996); United States v. Lopez, 514 U.S. 549 (1995); New York v. United States, 505 U.S. 144 (1992); see also Gregory v. Ashcroft, 501 U.S. 452 (1991).
2. See Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2181-82 (1998); John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311, 1357 (1997).
3. See Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2181-82 (1998); John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311, 1357 (1997).
4. 517 U.S. at 47.
5. 505 U.S. at 149.
6. 117 S. Ct. at 2384.
7. 78 U.S. (11 Wall.) 113, 125-26 (1870); see infra note 36.
8. 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985); see Garcia, 469 U.S. at 580 (Rehnquist, J., dissenting) ("I am confident, in time again [that the rule in Usery will] command the support of a majority of this Court."); see also Yoo, supra note 2 (arguing that San Antonio has already been overruled sub silentio in some respects).
9. See infra at section II.A.
10. See infra at section IV.A.
11. See infra at Part I.
12. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997); Symposium: Textualism and the Constitution, 66 GEO. WASH. L. REV. 1081 (1998); William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990); John F. Manning, Textualism As a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 674 (1997); Mark Tushnet, A Note on the Revival of Textualism in Constitutional Theory, 58 S. CAL. L. REV. 683 (1985). Although textualism has been influential in both statutory and constitutional cases, it has probably had a greater effect in statutory cases.
13. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997); Symposium: Textualism and the Constitution, 66 GEO. WASH. L. REV. 1081 (1998); William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990); John F. Manning, Textualism As a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 674 (1997); Mark Tushnet, A Note on the Revival of Textualism in Constitutional Theory, 58 S. CAL. L. REV. 683 (1985). Although textualism has been influential in both statutory and constitutional cases, it has probably had a greater effect in statutory cases.
14. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997); Symposium: Textualism and the Constitution, 66 GEO. WASH. L. REV. 1081 (1998); William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990); John F. Manning, Textualism As a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 674 (1997); Mark Tushnet, A Note on the Revival of Textualism in Constitutional Theory, 58 S. CAL. L. REV. 683 (1985). Although textualism has been influential in both statutory and constitutional cases, it has probably had a greater effect in statutory cases.
15. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997); Symposium: Textualism and the Constitution, 66 GEO. WASH. L. REV. 1081 (1998); William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990); John F. Manning, Textualism As a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 674 (1997); Mark Tushnet, A Note on the Revival of Textualism in Constitutional Theory, 58 S. CAL. L. REV. 683 (1985). Although textualism has been influential in both statutory and constitutional cases, it has probably had a greater effect in statutory cases.
16. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997); Symposium: Textualism and the Constitution, 66 GEO. WASH. L. REV. 1081 (1998); William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990); John F. Manning, Textualism As a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 674 (1997); Mark Tushnet, A Note on the Revival of Textualism in Constitutional Theory, 58 S. CAL. L. REV. 683 (1985). Although textualism has been influential in both statutory and constitutional cases, it has probably had a greater effect in statutory cases.
17. Leading advocates of textualism include Justice Scalia, see SCALIA, supra note 11, and Judge Frank Easterbrook of the Seventh U.S. Circuit Court of Appeals, see Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533 (1983). On the Supreme Court, Justice Thomas is also a strong proponent of textualism. See William N. Eskridge, Should the Supreme Court Read the Federalist but Not Statutory Legislative History?, 66 GEO. WASH. L. REV. 1301, 1301-02, 1307-08 (1998) (describing Justice Thomas as a textualist in statutory cases); see also ROBERT H. BORK, THE TEMPTING OF AMERICA (1990) (defending one version of textualism).
18. Leading advocates of textualism include Justice Scalia, see SCALIA, supra note 11, and Judge Frank Easterbrook of the Seventh U.S. Circuit Court of Appeals, see Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533 (1983). On the Supreme Court, Justice Thomas is also a strong proponent of textualism. See William N. Eskridge, Should the Supreme Court Read the Federalist but Not Statutory Legislative History?, 66 GEO. WASH. L. REV. 1301, 1301-02, 1307-08 (1998) (describing Justice Thomas as a textualist in statutory cases); see also ROBERT H. BORK, THE TEMPTING OF AMERICA (1990) (defending one version of textualism).
19. Leading advocates of textualism include Justice Scalia, see SCALIA, supra note 11, and Judge Frank Easterbrook of the Seventh U.S. Circuit Court of Appeals, see Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533 (1983). On the Supreme Court, Justice Thomas is also a strong proponent of textualism. See William N. Eskridge, Should the Supreme Court Read the Federalist but Not Statutory Legislative History?, 66 GEO. WASH. L. REV. 1301, 1301-02, 1307-08 (1998) (describing Justice Thomas as a textualist in statutory cases); see also ROBERT H. BORK, THE TEMPTING OF AMERICA (1990) (defending one version of textualism).
20. Leading advocates of textualism include Justice Scalia, see SCALIA, supra note 11, and Judge Frank Easterbrook of the Seventh U.S. Circuit Court of Appeals, see Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533 (1983). On the Supreme Court, Justice Thomas is also a strong proponent of textualism. See William N. Eskridge, Should the Supreme Court Read the Federalist but Not Statutory Legislative History?, 66 GEO. WASH. L. REV. 1301, 1301-02, 1307-08 (1998) (describing Justice Thomas as a textualist in statutory cases); see also ROBERT H. BORK, THE TEMPTING OF AMERICA (1990) (defending one version of textualism).
21. See infra notes 21-23 and accompanying text (arguing that this type of inference is necessary to finding many constitutional rights and powers that are an accepted part of our jurisprudence).
22. While I present a textualist theory of interpretation, I also speak of the intent of the Framers. Although certain versions of textualism and intentionalism may conflict, there is no necessary inconsistency between them. In my view, textualism seeks the intent of the framers of a law, as that intent is expressed in the text. This is the classical view of legal interpretation. See 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *59 ("The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these 'signs' include 'the words . . . of the law.'") (1829); JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 400, at 383-84, § 427, at 411 (1833); see also ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 17 (1997) ("We look for a sort of 'objectified' intent - the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris."). Thus, it is entirely appropriate to ask whether certain interpretations of the text are in accord with the intent of the Framers. What is not permissible is to depart from the text, absent an absurdity, to give effect to intent. See infra note 15.
23. While I present a textualist theory of interpretation, I also speak of the intent of the Framers. Although certain versions of textualism and intentionalism may conflict, there is no necessary inconsistency between them. In my view, textualism seeks the intent of the framers of a law, as that intent is expressed in the text. This is the classical view of legal interpretation. See 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *59 ("The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these 'signs' include 'the words . . . of the law.'") (1829); JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 400, at 383-84, § 427, at 411 (1833); see also ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 17 (1997) ("We look for a sort of 'objectified' intent - the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris."). Thus, it is entirely appropriate to ask whether certain interpretations of the text are in accord with the intent of the Framers. What is not permissible is to depart from the text, absent an absurdity, to give effect to intent. See infra note 15.
24. While I present a textualist theory of interpretation, I also speak of the intent of the Framers. Although certain versions of textualism and intentionalism may conflict, there is no necessary inconsistency between them. In my view, textualism seeks the intent of the framers of a law, as that intent is expressed in the text. This is the classical view of legal interpretation. See 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *59 ("The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these 'signs' include 'the words . . . of the law.'") (1829); JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 400, at 383-84, § 427, at 411 (1833); see also ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 17 (1997) ("We look for a sort of 'objectified' intent - the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris."). Thus, it is entirely appropriate to ask whether certain interpretations of the text are in accord with the intent of the Framers. What is not permissible is to depart from the text, absent an absurdity, to give effect to intent. See infra note 15.
25. Chief Justice Marshall stated this principle in 1817: [Although the spirit of an instrument, especially of a constitution, is to be respected no less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerous in the extreme to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words is justifiable. But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application. Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 202 (1819). Justice Story agreed with this principle. See STORY, supra note 14, § 405, at 387, as does Justice Scalia. See Green v. Bock Laundry Mach. Co., 490 U.S. 504 (1989). Unfortunately, courts have often departed from the text when the consequences are not absurd. For the classic example, see Holy Trinity Church v. United States, 143 U.S. 459 (1892).
26. See BLACKSTONE, supra note 14, at *60; STORY, supra note 14, § 405, at 287.
27. See STORY, supra note 14, § 455, at 441; CHRISTOPHER WOLFE, THE RISE OF MODERN JUDICIAL REVIEW 41-51 (1986) (arguing that Chief Justice Marshall interpreted the Constitution based on its structure).
28. See BLACKSTONE, supra note 14, at *61; STORY, supra note 14, § 428, at 411-12.
29. See STORY, supra note 14, § 405, at 387-88.
30. Similarly, when the text is consistent with only one meaning, that meaning should be chosen unless structure, purpose, and history indicate that the meaning would be absurd. See supra note 15.
31. Broad interpretations are necessary to finding many existing constitutional powers and limitations, including the power of Congress to punish contempts, the exclusive right of Members of the House of Representatives to vote in Congress, the political question doctrine, and the power of executive privilege.
32. See Butz v. Economou, 438 U.S. 478, 508-09 (1978); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1872).
33. See John O. McGinnis & Michael B. Rappaport, The Rights of Legislators and the Wrongs of Interpretation: A Further Defense of the Constitutionality of Legislative Supermajority Rules, 47 DUKE L.J. 327, 343-46 (1997);
34. John O. McGinnis & Michael B. Rappaport, The Constitutionality of Supermajority Rules: A Defense, 105 YALE L.J. 483 (1995).
35. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).
36. There are two circumstances worth noting when the Framers might not have anticipated an issue or thought it unlikely to arise. The first circumstance involves an exercise of government power that departs from traditional practice. It is especially difficult for people to anticipate the truly unprecedented. The second circumstance involves the exercise of a governmental power that is seen as ineffective and therefore unlikely to be adopted. See infra notes 102-03 and accompanying text.
37. 505 U.S. 144 (1992).
38. See id. at 156-57.
39. Confirming that Congress is limited to its enumerated powers is only one function of the Tenth Amendment. A second function is to indicate that Congress's enumerated powers confer only limited authority. After all, there would be little reason to pass an amendment restricting Congress to its enumerated powers if they had unlimited scope. Thus, the common claim that the Tenth Amendment is a truism, see, e.g., United States v. Darby, 312 U.S. 100, 124 (1941), is true of its first function, but not its second function. But even though the Tenth Amendment is more than a truism, it still does not justify the prohibition on commandeering (or any other immunity), because it fails to explain how this immunity can be derived from the language of Congress's enumerated powers.
40. It is true that the Court in New York did not explicitly acknowledge that the law commandeering the state legislatures would have been constitutional under the ordinary principles governing Congress's enumerated powers. Indeed, the Court went even further and argued, as an alternative ground for holding the law unconstitutional, that the power to commandeer was not within Congress's enumerated powers. But, as I show below, the Court's argument for this alternative ground is untenable. See infra note
41. Once this alternative ground is rejected, the Court's Tenth Amendment argument must stand on its own and assume that a law commandeering the state is within Congress's enumerated powers. As the text explains, in these circumstances, the prohibition on commandeering simply cannot be based on the Tenth Amendment.
42. See New York, 505 U.S. at 160.
43. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) ("Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consistent with the letter and spirit of the constitution, are constitutional.").
44. As an alternative basis for its holding, the Court also argued that the power to commandeer is not within Congress's enumerated powers. See New York, 505 U.S. at 161-62. This implicit prohibition on commandeering might extend to all of Congress's enumerated powers or simply the commerce power. The Court was not entirely clear on this point, although the opinion appeared to suggest that the prohibition extends to all of the enumerated powers. See id. at 161-66. In either case, though, the Court's argument is seriously flawed. If the Court views the prohibition on commandeering as a limitation on all of the enumerated powers, it is difficult to explain what text supports it. Assuming the limitation is not implicit in the concept of legislative power, one would have to view it as deriving separately from each enumerated power. But that which is derivable from all clauses is really derivable from none. Viewing the prohibition on commandeering as deriving from the commerce power is also problematic for two reasons. First, it is hard to understand how a law that the Court regards as regulating interstate commerce, and which uses a means (commandeering) that would ordinarily be seen as necessary and proper to regulating interstate commerce, could somehow be outside of the commerce power. See supra notes 30-31 and accompanying text. Second, if the prohibition derives only from the Commerce Clause, that would still permit Congress to commandeer under its other enumerated powers, including its powers to tax, raise armies, and operate the post office. Thus, a derivation from the Commerce Clause fails to justify a general prohibition on commandeering and therefore leaves the states vulnerable to commandeering in many circumstances.
45. Printz v. United States, 117 S. Ct. 2365 (1997).
46. Id. at 2385 (O'Connor, J., concurring); id. at 2385 (Thomas, J., concurring).
47. Id. at 2370.
48. Id. at 2379 n.13.
49. The distinction between these two types of inferences is illustrated by a case that Justice Scalia gives as an example of a "reasonable implication" from the text. Scalia argues that the President's power to remove executive officers is a reasonable implication from the clause vesting executive power in the President. See Printz, 117 S. Ct. at 2379 n.113 (citing Meyers v. United States, 272 U.S. 52 (1926)). Understanding what Scalia means by this example, however, is difficult because there are two different ways of deriving the President's removal power from the Vesting Clause. First, one might view the language vesting executive power in the President as giving the President only the power to direct - that is, to give binding orders to subordinate executive officials. Under this reading of the language, one could find a presidential removal power only by implying it as necessary to give effect to the direction power. One would have to argue that without the removal power, executive officers would have no incentive to follow the President's orders. A second way of deriving the removal power is to argue that one of the meanings of executive power includes within it the removal power. Historically, the King of England had the removal power and the Framers sometimes used his powers as a model for those of the President. One could establish this as the correct meaning of executive power by showing that the removal power furthers the direction power that the Framers gave to the President. Although removal could be justified under either of these theories, one would need to establish a much stronger connection between direction and removal under the former theory, because it goes beyond the language of executive power in the Vesting Clause.
50. See EEOC v. Wyoming, 460 U.S. 226, 236 (1983); FERC v. Mississippi, 456 U.S. 742, 758 (1982); Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 286-87 (1981).
51. National League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 531 (1985); see also Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991) (suggesting that there might be a constitutional problem if Congress sought to prohibit mandatory retirement ages for state judges).
52. 78 U.S. (11 Wall.) 113, 125-27 (1870). The immunity of states from federal taxes has, of course, been narrowed since Collector v. Day was decided. See South Carolina v. Baker, 485 U.S. 505, 516-24 (1988) (detailing how the immunity has been narrowed over time); Massachusetts v. United States, 435 U.S. 444 (1978).
53. It might be argued that state immunities could be derived from the Guarantee Clause. See Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1 (1988). The Guarantee Clause provides that "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." U.S. CONST. art. IV, § 4. The clause, however, cannot be the source of these immunities. First, the language and structure of the clause indicate that it was addressed primarily to anti-republican actions taken on the state level rather than by the federal government. Thus, the clause appears to have been principally designed to prohibit (or to allow the federal government to prohibit) a state from attempting to establish a hereditary executive. See 2 RECORDS OF THE FEDERAL CONVENTION of 1787, at 47-48 (M. Farrand ed., 1911). Professor Merritt argues, however, that the language of the Guarantee Clause can be read also to limit the federal government. The requirement that the federal government "guarantee" to every state a republican form of government would then also require that the federal government not abridge the republican nature of state governments. But even if we assume that the clause limits the federal government, that would not be sufficient to derive from it the state immunities defended in this Article. If the clause restricts the federal government, it would merely prohibit it from passing the same laws that the clause forbids the states from passing (such as a federal law establishing a hereditary state executive). To derive the state immunities defended in this Article, one would need to read the Guarantee Clause to prohibit the federal government from passing laws that would be entirely legitimate for the state to pass. One would need to conclude, for example, that the Guarantee Clause forbids the federal government from taxing state property, even though a state clearly does not violate the clause by taxing its own government property. An interpretation of the clause to apply more broadly against the federal government than state governments would conflict with the language and structure of the clause to guard against actions taken at the state level. Professor Merritt argues that statements made during the debates on ratification are evidence of this interpretation of the clause. See Merritt, supra, at 29-36. While this is not the place to discuss these statements in detail, I do not read any of these statements as asserting that the Guarantee Clause applies more extensively against the federal government than against the states. Although the statements were made for various purposes, often the statements simply indicate that the Guarantee Clause shows that the Constitution does not abolish the states and recognizes that the states will continue to exist. See, e.g., 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 99-100 (1836) (remarks of Gen. Brooks); 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 146, 149 (1983) (Uncus).
54. It might be argued that state immunities could be derived from the Guarantee Clause. See Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1 (1988). The Guarantee Clause provides that "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." U.S. CONST. art. IV, § 4. The clause, however, cannot be the source of these immunities. First, the language and structure of the clause indicate that it was addressed primarily to anti-republican actions taken on the state level rather than by the federal government. Thus, the clause appears to have been principally designed to prohibit (or to allow the federal government to prohibit) a state from attempting to establish a hereditary executive. See 2 RECORDS OF THE FEDERAL CONVENTION of 1787, at 47-48 (M. Farrand ed., 1911). Professor Merritt argues, however, that the language of the Guarantee Clause can be read also to limit the federal government. The requirement that the federal government "guarantee" to every state a republican form of government would then also require that the federal government not abridge the republican nature of state governments. But even if we assume that the clause limits the federal government, that would not be sufficient to derive from it the state immunities defended in this Article. If the clause restricts the federal government, it would merely prohibit it from passing the same laws that the clause forbids the states from passing (such as a federal law establishing a hereditary state executive). To derive the state immunities defended in this Article, one would need to read the Guarantee Clause to prohibit the federal government from passing laws that would be entirely legitimate for the state to pass. One would need to conclude, for example, that the Guarantee Clause forbids the federal government from taxing state property, even though a state clearly does not violate the clause by taxing its own government property. An interpretation of the clause to apply more broadly against the federal government than state governments would conflict with the language and structure of the clause to guard against actions taken at the state level. Professor Merritt argues that statements made during the debates on ratification are evidence of this interpretation of the clause. See Merritt, supra, at 29-36. While this is not the place to discuss these statements in detail, I do not read any of these statements as asserting that the Guarantee Clause applies more extensively against the federal government than against the states. Although the statements were made for various purposes, often the statements simply indicate that the Guarantee Clause shows that the Constitution does not abolish the states and recognizes that the states will continue to exist. See, e.g., 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 99-100 (1836) (remarks of Gen. Brooks); 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 146, 149 (1983) (Uncus).
55. It might be argued that state immunities could be derived from the Guarantee Clause. See Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1 (1988). The Guarantee Clause provides that "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." U.S. CONST. art. IV, § 4. The clause, however, cannot be the source of these immunities. First, the language and structure of the clause indicate that it was addressed primarily to anti-republican actions taken on the state level rather than by the federal government. Thus, the clause appears to have been principally designed to prohibit (or to allow the federal government to prohibit) a state from attempting to establish a hereditary executive. See 2 RECORDS OF THE FEDERAL CONVENTION of 1787, at 47-48 (M. Farrand ed., 1911). Professor Merritt argues, however, that the language of the Guarantee Clause can be read also to limit the federal government. The requirement that the federal government "guarantee" to every state a republican form of government would then also require that the federal government not abridge the republican nature of state governments. But even if we assume that the clause limits the federal government, that would not be sufficient to derive from it the state immunities defended in this Article. If the clause restricts the federal government, it would merely prohibit it from passing the same laws that the clause forbids the states from passing (such as a federal law establishing a hereditary state executive). To derive the state immunities defended in this Article, one would need to read the Guarantee Clause to prohibit the federal government from passing laws that would be entirely legitimate for the state to pass. One would need to conclude, for example, that the Guarantee Clause forbids the federal government from taxing state property, even though a state clearly does not violate the clause by taxing its own government property. An interpretation of the clause to apply more broadly against the federal government than state governments would conflict with the language and structure of the clause to guard against actions taken at the state level. Professor Merritt argues that statements made during the debates on ratification are evidence of this interpretation of the clause. See Merritt, supra, at 29-36. While this is not the place to discuss these statements in detail, I do not read any of these statements as asserting that the Guarantee Clause applies more extensively against the federal government than against the states. Although the statements were made for various purposes, often the statements simply indicate that the Guarantee Clause shows that the Constitution does not abolish the states and recognizes that the states will continue to exist. See, e.g., 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 99-100 (1836) (remarks of Gen. Brooks); 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 146, 149 (1983) (Uncus).
56. It might be argued that state immunities could be derived from the Guarantee Clause. See Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1 (1988). The Guarantee Clause provides that "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." U.S. CONST. art. IV, § 4. The clause, however, cannot be the source of these immunities. First, the language and structure of the clause indicate that it was addressed primarily to anti-republican actions taken on the state level rather than by the federal government. Thus, the clause appears to have been principally designed to prohibit (or to allow the federal government to prohibit) a state from attempting to establish a hereditary executive. See 2 RECORDS OF THE FEDERAL CONVENTION of 1787, at 47-48 (M. Farrand ed., 1911). Professor Merritt argues, however, that the language of the Guarantee Clause can be read also to limit the federal government. The requirement that the federal government "guarantee" to every state a republican form of government would then also require that the federal government not abridge the republican nature of state governments. But even if we assume that the clause limits the federal government, that would not be sufficient to derive from it the state immunities defended in this Article. If the clause restricts the federal government, it would merely prohibit it from passing the same laws that the clause forbids the states from passing (such as a federal law establishing a hereditary state executive). To derive the state immunities defended in this Article, one would need to read the Guarantee Clause to prohibit the federal government from passing laws that would be entirely legitimate for the state to pass. One would need to conclude, for example, that the Guarantee Clause forbids the federal government from taxing state property, even though a state clearly does not violate the clause by taxing its own government property. An interpretation of the clause to apply more broadly against the federal government than state governments would conflict with the language and structure of the clause to guard against actions taken at the state level. Professor Merritt argues that statements made during the debates on ratification are evidence of this interpretation of the clause. See Merritt, supra, at 29-36. While this is not the place to discuss these statements in detail, I do not read any of these statements as asserting that the Guarantee Clause applies more extensively against the federal government than against the states. Although the statements were made for various purposes, often the statements simply indicate that the Guarantee Clause shows that the Constitution does not abolish the states and recognizes that the states will continue to exist. See, e.g., 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 99-100 (1836) (remarks of Gen. Brooks); 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 146, 149 (1983) (Uncus).
57. See Raoul Berger, Judicial Manipulation of the Commerce Clause, 74 TEX. L. REV. 695 (1996); Richard Epstein, The Proper Scope of the Commerce Power, 73 VA. L. REV. 1387 (1987).
58. See Raoul Berger, Judicial Manipulation of the Commerce Clause, 74 TEX. L. REV. 695 (1996); Richard Epstein, The Proper Scope of the Commerce Power, 73 VA. L. REV. 1387 (1987).
59. One modern dictionary includes as one definition of state "one of the constituent units of a nation having a federal government." WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 1151 (1989). See infra notes 53-55 and accompanying text.
60. THE DECLARATION OF INDEPENDENCE para. 32 (U.S. 1776) (emphasis added).
61. ARTICLES OF CONFEDERATION art. II (1781).
62. See PETER ONUF & NICHOLAS ONUF, FEDERAL UNION, MODERN WORLD: THE LAW OF NATIONS IN AN AGE OF REVOLUTION 1776-1814, at 11 (1993); David Gray Adler, The President's Recognition POWER, IN DAVID GRAY ADLER & LARRY N. GEORGE, THE CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY 137-38 (1996).
63. See PETER ONUF & NICHOLAS ONUF, FEDERAL UNION, MODERN WORLD: THE LAW OF NATIONS IN AN AGE OF REVOLUTION 1776-1814, at 11 (1993); David Gray Adler, The President's Recognition POWER, IN DAVID GRAY ADLER & LARRY N. GEORGE, THE CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY 137-38 (1996).
64. EMMERICH DE VATTEL, THE LAW OF NATIONS (1863) Preliminaries, § 1; § 4 ("Nations, or sovereign states, are to be considered as so many free persons living together in the state of nature."); Bk I, § 4 ("Every nation that governs itself, under what form soever, without dependence on any foreign power, is a Sovereign State."); Bk I, § 10 ("Finally, several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state.").
65. See BLACKSTONE, supra note 14, at *47 ("This will naturally lead us into a short enquiry concerning . . . the natural, inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws."); id. at *44 (Civil law "is a rule of conduct prescribed by the supreme power in a state") (quoting Coke); id. at *49 ("[A]ll other powers of the state must obey the legislative power in the execution of their several functions, or else the constitution is at an end."); id. at *44 (referring to "state or nation" interchangeably).
66. See 1 ST. GEORGE TUCKER'S BLACKSTONE'S COMMENTARIES, app. B, at 7 (1803) ("A nation or state is a body politic, or a society of men united together to promote their mutual safety, and advantage, by means of their union.").
67. Webster's Dictionary defines state as "A political body, or body politic; the whole body of people united under one government, whatever may be the form of government." NOAH WEBSTER, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828); see also SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (1755) (defining state as "the community; the publick; the commonwealth"). By contrast, Johnson defines district as "region; country; territory." Id.
68. Webster's Dictionary defines state as "A political body, or body politic; the whole body of people united under one government, whatever may be the form of government." NOAH WEBSTER, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828); see also SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (1755) (defining state as "the community; the publick; the commonwealth"). By contrast, Johnson defines district as "region; country; territory." Id.
69. Indeed, it would be odd to refer to a district as free. Instead, the Constitution here appears to be following a long republican tradition that associated self governing polities with militias. See BERNARD BAILYM, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 61-63 (1967).
70. For other constitutional clauses that mention foreign states, see U.S. CONST. art. III, § 2, (allowing for federal jurisdiction of suits between United States citizens and foreign States), and U.S. CONST. amend. XI (restricting such jurisdiction).
71. Of course, if a local government did attempt to grant a title to a United States officer, the Constitution would probably prohibit it, because it would be thought of as an act by a part of or by an agent of the foreign State. But the Constitution would not prohibit it because it deemed the local government itself to be a foreign state.
72. Vattel captured the conventional view of confederations at the time: [S]everal sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraints on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfil engagements which he has voluntarily contracted. VATTEL, supra note 47, at § 10; see also THE FEDERALIST Nos. 18, 20 (James Madison), No. 19 (James Madison with Alexander Hamilton) (discussing confederations).
73. Vattel captured the conventional view of confederations at the time: [S]everal sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraints on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfil engagements which he has voluntarily contracted. VATTEL, supra note 47, at § 10; see also THE FEDERALIST Nos. 18, 20 (James Madison), No. 19 (James Madison with Alexander Hamilton) (discussing confederations).
74. Vattel captured the conventional view of confederations at the time: [S]everal sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraints on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfil engagements which he has voluntarily contracted. VATTEL, supra note 47, at § 10; see also THE FEDERALIST Nos. 18, 20 (James Madison), No. 19 (James Madison with Alexander Hamilton) (discussing confederations).
75. See Constitution of Mexico, in CONSTITUTIONS OF THE COUNTRIES OF THE WORLD (Gisbert Flanz ed., 1998) (establishing a federal republic with states, but conferring enormous powers on the national government); Constitution of Brazil, in CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra (same).
76. See Constitution of Mexico, in CONSTITUTIONS OF THE COUNTRIES OF THE WORLD (Gisbert Flanz ed., 1998) (establishing a federal republic with states, but conferring enormous powers on the national government); Constitution of Brazil, in CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra (same).
77. One would question congressional actions that abridged specific immunities in the Constitution, such as the prohibition on creating a new state within the territory of an existing state. See U.S. CONST. art. IV, § 3, cl. 1.
78. See supra notes 21-23 and accompanying text.
79. See U.S. CONST. art. I, § 8, cl. 17 (authorizing establishment of a "District" to become the seat of government).
80. See infra notes section III.C and accompanying text.
81. See infra sections III.C.2 and II.C.3.
82. See THE FEDERALIST No. 39, at 253-55 (James Madison) (Jacob E. Cooke ed., 1961) (describing the Constitution as establishing a form of government that is neither national nor federal, but a mixture of both); JACK N. RAKOVE, ORIGINAL MEANINGS 162 (1996) (stating that Madison considered the relationship between the states and national governments to be unprecedented).
83. See THE FEDERALIST No. 39, at 253-55 (James Madison) (Jacob E. Cooke ed., 1961) (describing the Constitution as establishing a form of government that is neither national nor federal, but a mixture of both); JACK N. RAKOVE, ORIGINAL MEANINGS 162 (1996) (stating that Madison considered the relationship between the states and national governments to be unprecedented).
84. See supra Part I. 63 Rather, one would assume that the term was referring to an entity that possessed immunities that were conferred elsewhere.
85. In addition to the three immunities defended in the text of this Part, I also consider the possibility of other immunities. See infra note 111 (arguing for a state immunity against spending laws that coerce the states into accepting conditions on spending that commandeer the states or that regulate the state as states); infra note 139 (considering the possibility of an immunity against Congress's authority to preempt state taxes). In Part IV of the Article, I also argue that the term "State" protects Congress from abrogating state sovereign immunity in state courts.
86. But cf. infra note 110 (arguing that Congress may commandeer state courts).
87. See Michael Wells & Walter Hellerstein, The Governmental-Proprietary Distinction in Constitutional Law, 66 VA. L. REV. 1073, 1075 (1980).
88. See RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN 120-57 (1987); Epstein, supra note 42, at 1443-51.
89. See United States v. Lopez, 514 U.S. 549, 564 (1995) (implying that these may be areas within the exclusive power of the states to regulate).
90. 5 THE COMPLETE ANTI-FEDERALIST 5.14.6 (Herbert J. Storing ed., 1981) (the Impartial Examiner); 2 THE COMPLETE ANTI-FEDERALIST 2.18.13 (Herbert J. Storing ed., 1981) (the Federal Farmer).
91. 5 THE COMPLETE ANTI-FEDERALIST 5.14.6 (Herbert J. Storing ed., 1981) (the Impartial Examiner); 2 THE COMPLETE ANTI-FEDERALIST 2.18.13 (Herbert J. Storing ed., 1981) (the Federal Farmer).
92. 5 THE COMPLETE ANTI-FEDERALIST, supra note 69, at 5.16.27 (Patrick Henry); 2 THE COMPLETE ANTI-FEDERALIST, supra note 69, at 2.6.27 (Letters of Cato).
93. 5 THE COMPLETE ANTI-FEDERALIST, supra note 69, at 5.16.27 (Patrick Henry); 2 THE COMPLETE ANTI-FEDERALIST, supra note 69, at 2.6.27 (Letters of Cato).
94. A Framer wrote: "In small independent States contiguous to each other, the people run away and leave despotism, to reek its vengeance on itself; and thus it is that moderation becomes with them, the law of self-preservation." 5 THE COMPLETE ANTI-FEDERALIST, supra note 69, at 5.1.53.
95. Under the original Constitution, the states also had a significant role in forming the federal government. Prior to the Seventeenth Amendment, the state legislatures chose the Senators from each state. See U.S. CONST. art. I, § 3, cl. 1 (amended 1913). The Constitution also gives the states the power to set the qualifications to vote for members of the House of Representatives. See U.S. CONST. art. I, § 4, cl. 1. Although this originally gave the states significant authority to determine who should vote, constitutional amendments and judicial interpretations have significantly reduced state discretion over such qualifications. See U.S. CONST. amend. XIV; U.S. CONST. amend. XV; U.S. CONST. amend. XIX; U.S. CONST amend. XXIV; U.S. CONST. amend. XXVI; Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966). Finally, the Constitution also provides the states with the exclusive authority to determine how the electoral college should be chosen, leaving to Congress only the decision when the electors should be chosen. Although this power generally has not been used in modern times, it could allow the states to choose electors by districts or to establish a system of run-off elections to prevent candidates who fail to secure a majority of the vote to prevail. See Michael B. Rappaport, Solving the Problem of Third Parties, SAN DIEGO UNION TRIB., July 24, 1996.
96. In Federalist Ho. 26, Hamilton wrote: [T]he state Legislature, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens, against encroachments from the Federal government, will constantly have their attention awake to the conduct of the national rulers and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE but if necessary, the ARM of their discontent. THE FEDERALIST NO. 26, at 169 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). In Federalist No. 28, he also stated: It may be safely received as an axiom in our political system, that the state governments will in all possible contingencies afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men as of the people at large. The Legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. THE FEDERALIST No. 28, at 179-80 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
97. In Federalist Ho. 26, Hamilton wrote: [T]he state Legislature, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens, against encroachments from the Federal government, will constantly have their attention awake to the conduct of the national rulers and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE but if necessary, the ARM of their discontent. THE FEDERALIST NO. 26, at 169 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). In Federalist No. 28, he also stated: It may be safely received as an axiom in our political system, that the state governments will in all possible contingencies afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men as of the people at large. The Legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. THE FEDERALIST No. 28, at 179-80 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
98. See supra note 73 and infra note 75.
99. See Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1502 (1987) (discussing state legislative resolutions attacking the Alien and Sedition Acts as an instance of this theory).
100. This monitoring and resistance function of the states should not be dismissed as an anachronism. Public choice theory has confirmed the importance of organization as an important condition of effectiveness in the political process. See MANCUR OLSON, JR., THE LOGIC OF COLLECTIVE ACTION 143 (1965); John O. McGinnis & Michael B. Rappaport, Supermajority Rules as a Constitutional Solution, 40 WM. & MARY L. REV. 365, 378-79 (1999). Thus, organized state governments are better able than the general public to monitor the federal government. Indeed, the states have been an important part of the recent efforts to restore federalism and to devolve government back to the states. See. e.g., Henry Paul Monaghan, We the People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121, 121 (1996).
101. This monitoring and resistance function of the states should not be dismissed as an anachronism. Public choice theory has confirmed the importance of organization as an important condition of effectiveness in the political process. See MANCUR OLSON, JR., THE LOGIC OF COLLECTIVE ACTION 143 (1965); John O. McGinnis & Michael B. Rappaport, Supermajority Rules as a Constitutional Solution, 40 WM. & MARY L. REV. 365, 378-79 (1999). Thus, organized state governments are better able than the general public to monitor the federal government. Indeed, the states have been an important part of the recent efforts to restore federalism and to devolve government back to the states. See. e.g., Henry Paul Monaghan, We the People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121, 121 (1996).
102. This monitoring and resistance function of the states should not be dismissed as an anachronism. Public choice theory has confirmed the importance of organization as an important condition of effectiveness in the political process. See MANCUR OLSON, JR., THE LOGIC OF COLLECTIVE ACTION 143 (1965); John O. McGinnis & Michael B. Rappaport, Supermajority Rules as a Constitutional Solution, 40 WM. & MARY L. REV. 365, 378-79 (1999). Thus, organized state governments are better able than the general public to monitor the federal government. Indeed, the states have been an important part of the recent efforts to restore federalism and to devolve government back to the states. See. e.g., Henry Paul Monaghan, We the People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121, 121 (1996).
103. The existence of independent state governments also may make it more difficult for Congress to operate unjustly or inefficiently. If the public observes state governments that function fairly and efficiently, it will be harder for the federal government to justify an unfair or inefficient performance as the best that any government could accomplish.
104. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819).
105. It is not clear that upholding this tax would require analogizing state revenue to private activities that have been taxed. But even if such an analogy were required, one could analogize state revenues to the gross receipts of private entities.
106. In general, the Court has allowed Congress to impose taxes that appear to prohibit or regulate certain activities so long as they raise some revenue and there is nothing on the face of the statute to suggest that the tax is really a regulation. See United States v. Kahriger, 345 U.S. 22 (1953); Sonzinsky v. United States, 300 U.S. 506, 512-14 (1937). Evidence from the legislative history suggesting that Congress intended to regulate the activity has been held insufficient. See Sonzinsky, 300 U.S. at 513-14. Rather, the Court has held that Congress is regulating under the guise of taxing only where the narrow object of the tax suggested that Congress was not attempting to raise funds, but instead to regulate or restrain conduct. See id. at 512-13; Child Labor Tax Case, 259 U.S. 20, 37 (1922). It is significant that the Court established this doctrine during the period when it strictly enforced limitations on Congress's enumerated powers.
107. If Congress levied a 33% tax on state tax receipts, the states would have to raise state taxes by 50% to maintain the same level of services. For example, suppose a state collects $10 billion in taxes that are currently not subject to federal taxes. At a 33% rate, the state would have to raise approximately $15 billion in taxes to secure $10 billion in after-tax revenue.
108. Congress could also impose a tax on each bill that is passed, which would make it even more difficult to enact laws.
109. Furthermore, if Congress can cause the states to function less effectively, then the federal government has less need to fear that its performance would appear inferior to that of the state governments.
110. Although my discussion has focused on reductions in state services in response to federal taxes, the states also have the option of raising state taxes (or combining a tax increase with a service reduction). Raising taxes would have a similar effect to reducing services. First, the states will be providing fewer services for a given level of taxes, which will cause citizens to participate less in state politics and to have less allegiance for their state. These effects will render the states less able to perform their constitutional functions. They will be providing legislative and executive services less adequately, because they will be charging more for the same service. The states will also be less able to monitor and resist federal abuses, because they will have less allegiance and a less effective political system. Finally, the federal government will remain strong, because it can raise funds without increasing taxes on individuals.
111. See Epstein, supra note 42, at 1443-51.
112. See id. at 1450-51.
113. 514 U.S. 549 (1995).
114. See id. at 561.
115. See id. at 551-58.
116. See Gregory v. Ashcroft, 501 U.S. 452, 467-68 (1991).
117. See Maryland v. Wirtz, 392 U.S. 183, 196-97 (1968).
118. Congress could also create inefficiency by making it difficult for the state to hire based on merit For example, Congress could require that officials or employees be selected based on various considerations that are unrelated to merit, such as their lack of wealth, the languages they speak, unless the state can show by or clear and convincing evidence that a job applicant is not qualified.
119. Alternatively, Congress could effectively prohibit certain state officials from being chosen by elections. Congress might do this by requiring procedures that are not compatible with elections, such as mandating that the selection of a state official be accompanied by a written statement of the reasons for the appointment.
120. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276-80 (1981); Wirtz, 392 U.S. at 193-200; Lopez, 514 U.S. at 615 (Breyer, J., dissenting)..
121. Congress might also conclude that legislatures operate better with only one house rather than two, or when the terms of the legislators are for one year only.
122. Congress's power to commandeer would be based on a particular enumerated power and the Necessary and Proper Clause. See supra notes 29-32 and accompanying text.
123. See Printz v. United States, 117 S. Ct. 2365, 2377 (1997).
124. Commandeering may also harm state politics. If citizens perceive the state as behaving poorly, they may refrain from becoming involved in state politics. Those who do become involved to attempt to reform the system, however, will soon learn the important decisions are made at the federal level and may then decide to withdraw from state politics.
125. See supra section III.C.1.b.2.
126. See 10 SIR WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 354 (1938) (King of England is not liable to pay taxes). Indeed, the rule in both England and the United States was that taxes did not apply to the government unless expressly provided for by the statute. For England, see HOLDSWORTH, supra, at 295-97; Amherst v. Sommers, 2 T.R. 372, 375 (1788); King v. Cook, 3 T.R. 519, 522 (1790); Eckersall v. Briggs, 4 T.R. 6 (1790); Attorney-General v. Hill and Morris, 2 M.& W. 160, 170 (1836). For the United States, see City Council v. Lee, 3 S.C.L. (3 Brev.) 226 (1812); Piper v. Singer, 4 Serg. & Rawle 354 (Pa. 1818) (stating that public buildings belonging to County in Philadelphia have never been taxed); Worcester v. Western R.R. Corp. 45 Mass. (4 Met.) 564 (1842) (property appropriated to public uses not subject to taxation); Baltimore v. Green Mount Cemetery, 7 Md. 517 (1855); Poor of Schuykill County v. School Dirs., 42 Pa. 21 (1862); City of Louisville v. Commonwealth, 62 Ky. (1 Duv.) 295, 297 (1864) (neither the State nor a country has ever been considered a person contemplated by any tax law ever enacted); People v. Doe G. 1, 034, 36 Cal. 220, 222-23 (1868) (constitution and laws on taxing property are understood as referring to private property and persons, not including public property and the State); Trustees of Public Schools v. City of Trenton, 30 N.J. Eq. 667, 681 (1879). In part, the practice of not taxing governments was based on the view that it was pointless for the government to attempt to raise funds by taxing itself. See JEROME R. HELLERSTEIN & WALTER HELLERSTEIN, STATE AND LOCAL TAXATION 975 (5th ed. 1988) . Moreover, the principal forms of taxes at the time were taxes on the sellers of goods and on property. See W. ELLIOT BROWNLEE, FEDERAL TAXATION IN AMERICA 12-16 (1996). Governments, especially when undertaking their governmental functions, did not sell goods and therefore did not pay these taxes on sales. Property taxes were also generally not applied to public property. Finally, that federal taxes were not expected to be applied to state governments is revealed by the fact that the Antifederalists, who were extremely suspicious that federal powers would be used to eliminate the states, did not argue that federal taxes would be applied to the states. Instead, they repeatedly warned that Congress would use its taxing power to preempt the states from imposing state taxes. See, e.g., 2 THE COMPLETE ANTI-FEDERALIST 2.9.61 (Herbert J. Storing ed., 1981) (Brutus); 3 THE COMPLETE ANTI-FEDERALIST 3.3.33 (Herbert J. Storing ed., 1981) (An Old Whig).
127. See 10 SIR WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 354 (1938) (King of England is not liable to pay taxes). Indeed, the rule in both England and the United States was that taxes did not apply to the government unless expressly provided for by the statute. For England, see HOLDSWORTH, supra, at 295-97; Amherst v. Sommers, 2 T.R. 372, 375 (1788); King v. Cook, 3 T.R. 519, 522 (1790); Eckersall v. Briggs, 4 T.R. 6 (1790); Attorney-General v. Hill and Morris, 2 M.& W. 160, 170 (1836). For the United States, see City Council v. Lee, 3 S.C.L. (3 Brev.) 226 (1812); Piper v. Singer, 4 Serg. & Rawle 354 (Pa. 1818) (stating that public buildings belonging to County in Philadelphia have never been taxed); Worcester v. Western R.R. Corp. 45 Mass. (4 Met.) 564 (1842) (property appropriated to public uses not subject to taxation); Baltimore v. Green Mount Cemetery, 7 Md. 517 (1855); Poor of Schuykill County v. School Dirs., 42 Pa. 21 (1862); City of Louisville v. Commonwealth, 62 Ky. (1 Duv.) 295, 297 (1864) (neither the State nor a country has ever been considered a person contemplated by any tax law ever enacted); People v. Doe G. 1, 034, 36 Cal. 220, 222-23 (1868) (constitution and laws on taxing property are understood as referring to private property and persons, not including public property and the State); Trustees of Public Schools v. City of Trenton, 30 N.J. Eq. 667, 681 (1879). In part, the practice of not taxing governments was based on the view that it was pointless for the government to attempt to raise funds by taxing itself. See JEROME R. HELLERSTEIN & WALTER HELLERSTEIN, STATE AND LOCAL TAXATION 975 (5th ed. 1988) . Moreover, the principal forms of taxes at the time were taxes on the sellers of goods and on property. See W. ELLIOT BROWNLEE, FEDERAL TAXATION IN AMERICA 12-16 (1996). Governments, especially when undertaking their governmental functions, did not sell goods and therefore did not pay these taxes on sales. Property taxes were also generally not applied to public property. Finally, that federal taxes were not expected to be applied to state governments is revealed by the fact that the Antifederalists, who were extremely suspicious that federal powers would be used to eliminate the states, did not argue that federal taxes would be applied to the states. Instead, they repeatedly warned that Congress would use its taxing power to preempt the states from imposing state taxes. See, e.g., 2 THE COMPLETE ANTI-FEDERALIST 2.9.61 (Herbert J. Storing ed., 1981) (Brutus); 3 THE COMPLETE ANTI-FEDERALIST 3.3.33 (Herbert J. Storing ed., 1981) (An Old Whig).
128. See 10 SIR WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 354 (1938) (King of England is not liable to pay taxes). Indeed, the rule in both England and the United States was that taxes did not apply to the government unless expressly provided for by the statute. For England, see HOLDSWORTH, supra, at 295-97; Amherst v. Sommers, 2 T.R. 372, 375 (1788); King v. Cook, 3 T.R. 519, 522 (1790); Eckersall v. Briggs, 4 T.R. 6 (1790); Attorney-General v. Hill and Morris, 2 M.& W. 160, 170 (1836). For the United States, see City Council v. Lee, 3 S.C.L. (3 Brev.) 226 (1812); Piper v. Singer, 4 Serg. & Rawle 354 (Pa. 1818) (stating that public buildings belonging to County in Philadelphia have never been taxed); Worcester v. Western R.R. Corp. 45 Mass. (4 Met.) 564 (1842) (property appropriated to public uses not subject to taxation); Baltimore v. Green Mount Cemetery, 7 Md. 517 (1855); Poor of Schuykill County v. School Dirs., 42 Pa. 21 (1862); City of Louisville v. Commonwealth, 62 Ky. (1 Duv.) 295, 297 (1864) (neither the State nor a country has ever been considered a person contemplated by any tax law ever enacted); People v. Doe G. 1, 034, 36 Cal. 220, 222-23 (1868) (constitution and laws on taxing property are understood as referring to private property and persons, not including public property and the State); Trustees of Public Schools v. City of Trenton, 30 N.J. Eq. 667, 681 (1879). In part, the practice of not taxing governments was based on the view that it was pointless for the government to attempt to raise funds by taxing itself. See JEROME R. HELLERSTEIN & WALTER HELLERSTEIN, STATE AND LOCAL TAXATION 975 (5th ed. 1988) . Moreover, the principal forms of taxes at the time were taxes on the sellers of goods and on property. See W. ELLIOT BROWNLEE, FEDERAL TAXATION IN AMERICA 12-16 (1996). Governments, especially when undertaking their governmental functions, did not sell goods and therefore did not pay these taxes on sales. Property taxes were also generally not applied to public property. Finally, that federal taxes were not expected to be applied to state governments is revealed by the fact that the Antifederalists, who were extremely suspicious that federal powers would be used to eliminate the states, did not argue that federal taxes would be applied to the states. Instead, they repeatedly warned that Congress would use its taxing power to preempt the states from imposing state taxes. See, e.g., 2 THE COMPLETE ANTI-FEDERALIST 2.9.61 (Herbert J. Storing ed., 1981) (Brutus); 3 THE COMPLETE ANTI-FEDERALIST 3.3.33 (Herbert J. Storing ed., 1981) (An Old Whig).
129. See 10 SIR WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 354 (1938) (King of England is not liable to pay taxes). Indeed, the rule in both England and the United States was that taxes did not apply to the government unless expressly provided for by the statute. For England, see HOLDSWORTH, supra, at 295-97; Amherst v. Sommers, 2 T.R. 372, 375 (1788); King v. Cook, 3 T.R. 519, 522 (1790); Eckersall v. Briggs, 4 T.R. 6 (1790); Attorney-General v. Hill and Morris, 2 M.& W. 160, 170 (1836). For the United States, see City Council v. Lee, 3 S.C.L. (3 Brev.) 226 (1812); Piper v. Singer, 4 Serg. & Rawle 354 (Pa. 1818) (stating that public buildings belonging to County in Philadelphia have never been taxed); Worcester v. Western R.R. Corp. 45 Mass. (4 Met.) 564 (1842) (property appropriated to public uses not subject to taxation); Baltimore v. Green Mount Cemetery, 7 Md. 517 (1855); Poor of Schuykill County v. School Dirs., 42 Pa. 21 (1862); City of Louisville v. Commonwealth, 62 Ky. (1 Duv.) 295, 297 (1864) (neither the State nor a country has ever been considered a person contemplated by any tax law ever enacted); People v. Doe G. 1, 034, 36 Cal. 220, 222-23 (1868) (constitution and laws on taxing property are understood as referring to private property and persons, not including public property and the State); Trustees of Public Schools v. City of Trenton, 30 N.J. Eq. 667, 681 (1879). In part, the practice of not taxing governments was based on the view that it was pointless for the government to attempt to raise funds by taxing itself. See JEROME R. HELLERSTEIN & WALTER HELLERSTEIN, STATE AND LOCAL TAXATION 975 (5th ed. 1988) . Moreover, the principal forms of taxes at the time were taxes on the sellers of goods and on property. See W. ELLIOT BROWNLEE, FEDERAL TAXATION IN AMERICA 12-16 (1996). Governments, especially when undertaking their governmental functions, did not sell goods and therefore did not pay these taxes on sales. Property taxes were also generally not applied to public property. Finally, that federal taxes were not expected to be applied to state governments is revealed by the fact that the Antifederalists, who were extremely suspicious that federal powers would be used to eliminate the states, did not argue that federal taxes would be applied to the states. Instead, they repeatedly warned that Congress would use its taxing power to preempt the states from imposing state taxes. See, e.g., 2 THE COMPLETE ANTI-FEDERALIST 2.9.61 (Herbert J. Storing ed., 1981) (Brutus); 3 THE COMPLETE ANTI-FEDERALIST 3.3.33 (Herbert J. Storing ed., 1981) (An Old Whig).
130. See 10 SIR WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 354 (1938) (King of England is not liable to pay taxes). Indeed, the rule in both England and the United States was that taxes did not apply to the government unless expressly provided for by the statute. For England, see HOLDSWORTH, supra, at 295-97; Amherst v. Sommers, 2 T.R. 372, 375 (1788); King v. Cook, 3 T.R. 519, 522 (1790); Eckersall v. Briggs, 4 T.R. 6 (1790); Attorney-General v. Hill and Morris, 2 M.& W. 160, 170 (1836). For the United States, see City Council v. Lee, 3 S.C.L. (3 Brev.) 226 (1812); Piper v. Singer, 4 Serg. & Rawle 354 (Pa. 1818) (stating that public buildings belonging to County in Philadelphia have never been taxed); Worcester v. Western R.R. Corp. 45 Mass. (4 Met.) 564 (1842) (property appropriated to public uses not subject to taxation); Baltimore v. Green Mount Cemetery, 7 Md. 517 (1855); Poor of Schuykill County v. School Dirs., 42 Pa. 21 (1862); City of Louisville v. Commonwealth, 62 Ky. (1 Duv.) 295, 297 (1864) (neither the State nor a country has ever been considered a person contemplated by any tax law ever enacted); People v. Doe G. 1, 034, 36 Cal. 220, 222-23 (1868) (constitution and laws on taxing property are understood as referring to private property and persons, not including public property and the State); Trustees of Public Schools v. City of Trenton, 30 N.J. Eq. 667, 681 (1879). In part, the practice of not taxing governments was based on the view that it was pointless for the government to attempt to raise funds by taxing itself. See JEROME R. HELLERSTEIN & WALTER HELLERSTEIN, STATE AND LOCAL TAXATION 975 (5th ed. 1988) . Moreover, the principal forms of taxes at the time were taxes on the sellers of goods and on property. See W. ELLIOT BROWNLEE, FEDERAL TAXATION IN AMERICA 12-16 (1996). Governments, especially when undertaking their governmental functions, did not sell goods and therefore did not pay these taxes on sales. Property taxes were also generally not applied to public property. Finally, that federal taxes were not expected to be applied to state governments is revealed by the fact that the Antifederalists, who were extremely suspicious that federal powers would be used to eliminate the states, did not argue that federal taxes would be applied to the states. Instead, they repeatedly warned that Congress would use its taxing power to preempt the states from imposing state taxes. See, e.g., 2 THE COMPLETE ANTI-FEDERALIST 2.9.61 (Herbert J. Storing ed., 1981) (Brutus); 3 THE COMPLETE ANTI-FEDERALIST 3.3.33 (Herbert J. Storing ed., 1981) (An Old Whig).
131. In part, this conclusion follows from the definition of proprietary and governmental activities: Commercial activities are almost by definition proprietary activities. However, certain portions of the states' governmental functions, such as hiring employees to perform governmental functions, would now be considered to be within Congress's commerce power, on the ground that they substantially affect interstate commerce. See supra notes 86-90 and accompanying text. Nonetheless, the Framers would not have expected Congress to regulate these activities, because they believed that the interstate Commerce Clause provided narrow authority and did not cover most activities, commercial or otherwise, that did not cross state lines. See supra note 140; but cf. Infra notes 109-10 and accompanying text (arguing that the Framers would have expected that certain nondiscriminatory regulations undertaken pursuant to the commerce power, such as speed limits on interstate highways, would be applied to state governmental officials, such as the local police).
132. See Printz v. United States, 117 S. Ct. 2365, 2377 (1997).
133. Wells & Hellerstein, supra note 66, at 1076.
134. Indeed, the state can eliminate all federal taxes by performing only governmental functions.
135. See supra note 101.
136. Because a tax on contractors is not legally a tax on the state, the state should not be entitled to protection against it. But if the federal government were to discriminate against contractors with a state, that would have a much greater impact on the state and would suggest that the federal government was attempting to harm the state under the guise of regulating private parties.
137. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 540-46 (1985).
138. Absolute protection would not be provided to the proprietary activities of the states. Yet, to the extent that a matter of government structure involved both governmental and proprietary activities (for example, the method of appointing a state official whose duties included supervising both governmental and proprietary state agencies), that matter would be entitled to absolute protection.
139. An additional limitation on the immunity against commandeering is that it does not apply to commandeering of state judges. Three considerations explain why Congress may commandeer state judges, but not state executives or legislatures. See Printz v. United States, 117 S. Ct. 2365, 2371 (1997). First, prior to the Constitution, there was a traditional practice of one sovereign adjudicating the laws of another sovereign, but not of one sovereign enforcing or legislating the laws of another sovereign. See id. Second, this practice is reflected in the Supremacy Clause, which specifically requires state judges, but not state executives or state legislatures, to apply federal law. See U.S. CONST. art. VI, § 2. Finally, that the Framers ensured there would be a federal executive and legislature, but left to Congress's discretion whether to establish inferior federal courts, also suggests that they assumed state judges could be commandeered. See U.S. CONST. art. I, § 8, cl. 9.
140. The three immunities that I have discussed do not exhaust all of the state immunities. There is a strong argument that protecting the states against regulation and commandeering also requires an ancillary immunity that would prevent Congress from using its spending power to pressure the states either to comply with federal regulations or to enforce federal laws. Even if Congress cannot directly regulate the states or mandate that they enforce federal law, it can often accomplish these results indirectly with its spending authority. Under existing doctrine, Congress has broad authority to spend money for the general welfare and to impose conditions on the receipt of these funds. See South Dakota v. Dole, 483 U.S. 203, 208-09 (1987). By conditioning federal funds on states enforcing federal laws or complying with regulations, Congress can force the states either to accept these enforcement duties and regulations or to forego federal monies. Although the states could refuse the federal funds, Congress provides so much money to the states and has such broad authority to condition funds that it can make it extremely difficult for the states to do so. For example, suppose that following the Printz decision, Congress had made enforcement of the Brady Act a condition of receiving all federal funds for criminal law enforcement. Given the high price of refusing to enforce the Act, few states might be able to stand firm against such congressional pressure. Congress's ability to pressure the states could be limited by recognizing an immunity against certain types of spending conditions. The immunity would prohibit Congress from denying federal funds to states that fail to enforce a federal law or comply with a regulation unless the purpose of the funds was to reimburse the states for the costs of enforcing the law or complying with the regulation. See Lynn A. Baker, Conditional Federal Spending After Lopez, 95 COLUM. L. REV. 1911 (1995) (developing the distinction between reimbursement spending and other forms of spending). In the Brady Act example, Congress could deny to states that refuse to enforce the Brady Act funds required to be spent on enforcing the Act. What Congress could not do is deny to states that do not enforce the Brady Act other funds, such as funds for criminal law enforcement. This immunity would satisfy the structural principle that governs the other immunities: the immunity against spending conditions protects the states from the most harmful federal actions while permitting Congress to retain most of its spending power. The immunity greatly restricts Congress's ability to use its spending power to pressure states into enforcing federal laws or complying with regulations. Congress can only penalize a state for failing to enforce a law or comply with a regulation by the amount of money that these activities would cost. At the same time, the immunity preserves the great bulk of Congress's spending power. The immunity freely permits Congress to deny federal funds to private entities. It also permits Congress to deny federal funds to states as long as the funds are designed to reimburse the states for enforcing a law or complying with a regulation.
141. My conclusion that the states are not immune from regulations adopted under § 5 of the Fourteenth Amendment resembles the Supreme Court's holding that Congress may abrogate state sovereign immunity under this section. See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). In both cases, the immunity would unduly interfere with Congress's powers. Members of the Supreme Court, however, have sometimes justified this holding on the ground that § 5 was enacted after the original Constitution. See, e.g., EEOC v. Wyoming, 460 U.S. 226, 250, 259 (1983) (Burger, C.J., dissenting). This argument makes little sense. That the Fourteenth Amendment was enacted after the original Constitution does not make it more likely that it implicitly superseded immunities in the original document. The Framers of the Fourteenth Amendment were aware of the existing Constitution, and they were in as good a position as the original drafters to make exemptions from its implicit immunities. The immunities from regulation and lawsuits do not apply against § 5 because it would be inconsistent with the structure of the Constitution, not because § 5 was enacted after the original Constitution.
142. This argument also explains why Congress should be able to pass even discriminatory regulations of the states under § 5. The Fourteenth Amendment is addressed to state action, not to private action. Thus, the Amendment expressly contemplates under § 5 federal regulations of states that do not apply to private persons.
143. There was, however, some recognition that the term "State" implied sovereignty. See, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 327 (1821) (brief of defendant) ("The constitution recognizes the sovereignty of the States . . . . They would not be entitled to the appellation of "States" if they were not sovereign.").
144. Because this section discusses an issue that encompasses an enormous range of materials, I do not attempt to be comprehensive. Instead, I simply try to focus on the most important figures to show that the states were generally understood to retain at least a significant degree of sovereignty.
145. THE FEDERALIST No. 39, at 257 (James Madison) (Jacob E. Cooke ed., 1961). Madison understood a "federal constitution" to be a confederation of states similar to the Articles of Confederation. See supra note 54.
146. THE FEDERALIST No. 39, at 256 (James Madison) (Jacob E. Cooke ed., 1961). For other statements by Madison that the states would continue to exercise sovereignty, see THE FEDERALIST No. 40, at 260-61 (James Madison) (Jacob E. Cooke ed., 1961) (Constitution treats the states "as distinct and independent sovereigns"); THE FEDERALIST NO. 45, at 313 (James Madison) (Jacob E. Cooke ed., 1961) (the "powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.).
147. THE FEDERALIST No. 39, at 256 (James Madison) (Jacob E. Cooke ed., 1961). For other statements by Madison that the states would continue to exercise sovereignty, see THE FEDERALIST No. 40, at 260-61 (James Madison) (Jacob E. Cooke ed., 1961) (Constitution treats the states "as distinct and independent sovereigns"); THE FEDERALIST NO. 45, at 313 (James Madison) (Jacob E. Cooke ed., 1961) (the "powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.).
148. THE FEDERALIST No. 39, at 256 (James Madison) (Jacob E. Cooke ed., 1961). For other statements by Madison that the states would continue to exercise sovereignty, see THE FEDERALIST No. 40, at 260-61 (James Madison) (Jacob E. Cooke ed., 1961) (Constitution treats the states "as distinct and independent sovereigns"); THE FEDERALIST NO. 45, at 313 (James Madison) (Jacob E. Cooke ed., 1961) (the "powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.).
149. See THE FEDERALIST NO. 32, at 200 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) ("as the plan of the convention aims only at a partial Union or consolidation, the State Governments would clearly retain all the rights of sovereignty" that were not exclusively delegated to the United States); THE FEDERALIST No. 81, at 548-49 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (asserting that states would continue to possess the traditional sovereign power of being bound by contracts only upon their consent); THE FEDERALIST No. 84, at 579-80 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (arguing that a bill of rights was not necessary, because the Constitution conferred only limited powers on the federal government and no power to restrict the press); James Wilson's Speech at a Public Meeting, Oct. 6, 1787, in 1 THE DEBATE ON THE CONSTITUTION 63-64 (Bernard Bailyn ed., 1993) (same).
150. See THE FEDERALIST NO. 32, at 200 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) ("as the plan of the convention aims only at a partial Union or consolidation, the State Governments would clearly retain all the rights of sovereignty" that were not exclusively delegated to the United States); THE FEDERALIST No. 81, at 548-49 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (asserting that states would continue to possess the traditional sovereign power of being bound by contracts only upon their consent); THE FEDERALIST No. 84, at 579-80 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (arguing that a bill of rights was not necessary, because the Constitution conferred only limited powers on the federal government and no power to restrict the press); James Wilson's Speech at a Public Meeting, Oct. 6, 1787, in 1 THE DEBATE ON THE CONSTITUTION 63-64 (Bernard Bailyn ed., 1993) (same).
151. See THE FEDERALIST NO. 32, at 200 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) ("as the plan of the convention aims only at a partial Union or consolidation, the State Governments would clearly retain all the rights of sovereignty" that were not exclusively delegated to the United States); THE FEDERALIST No. 81, at 548-49 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (asserting that states would continue to possess the traditional sovereign power of being bound by contracts only upon their consent); THE FEDERALIST No. 84, at 579-80 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (arguing that a bill of rights was not necessary, because the Constitution conferred only limited powers on the federal government and no power to restrict the press); James Wilson's Speech at a Public Meeting, Oct. 6, 1787, in 1 THE DEBATE ON THE CONSTITUTION 63-64 (Bernard Bailyn ed., 1993) (same).
152. See THE FEDERALIST NO. 32, at 200 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) ("as the plan of the convention aims only at a partial Union or consolidation, the State Governments would clearly retain all the rights of sovereignty" that were not exclusively delegated to the United States); THE FEDERALIST No. 81, at 548-49 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (asserting that states would continue to possess the traditional sovereign power of being bound by contracts only upon their consent); THE FEDERALIST No. 84, at 579-80 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (arguing that a bill of rights was not necessary, because the Constitution conferred only limited powers on the federal government and no power to restrict the press); James Wilson's Speech at a Public Meeting, Oct. 6, 1787, in 1 THE DEBATE ON THE CONSTITUTION 63-64 (Bernard Bailyn ed., 1993) (same).
153. By contrast, it would have been quite peculiar for the Federalists to have suddenly referred to states as political bodies with no sovereignty when they believed the Constitution preserved a significant degree of such sovereignty.
154. See RAKOVE, supra note 61, at 181-88.
155. See RAKOVE, supra note 61, at 183; 2 THE COMPLETE ANTI-FEDERALIST 9.4 (Herbert J. Storing ed., 1981) (Brutus); id. at 9.142 (Brutus); John Smilie, Pennsylvania Ratifying Convention, in 1 THE FOUNDERS' CONSTITUTION 263-64 (Philip B. Kurland & Ralph Lerner eds., 1987).
156. See RAKOVE, supra note 61, at 183; 2 THE COMPLETE ANTI-FEDERALIST 9.4 (Herbert J. Storing ed., 1981) (Brutus); id. at 9.142 (Brutus); John Smilie, Pennsylvania Ratifying Convention, in 1 THE FOUNDERS' CONSTITUTION 263-64 (Philip B. Kurland & Ralph Lerner eds., 1987).
157. See RAKOVE, supra note 61, at 183; 2 THE COMPLETE ANTI-FEDERALIST 9.4 (Herbert J. Storing ed., 1981) (Brutus); id. at 9.142 (Brutus); John Smilie, Pennsylvania Ratifying Convention, in 1 THE FOUNDERS' CONSTITUTION 263-64 (Philip B. Kurland & Ralph Lerner eds., 1987).
158. My argument here is consistent with the textualist view that legislative history does not reveal intent of the Framers, but that such history may reveal the eighteenth century meaning of terms and how informed people interpreted the document. That a majority of each convention supported ratification suggests that a larger number of delegates accepted the interpretations of the constitutional language proposed by the Federalists. It is true that the reasons why delegates voted for or against the Constitution are complex and did not necessarily reflect their acceptance of the arguments that were voiced. For example, some nationalists may have believed that the Constitution would deprive the states of sovereignty and voted for it for this reason. Yet, it seems unlikely that many people believed that state sovereignty was unimportant Alexander Hamilton's extreme nationalist position, voiced in the Philadelphia convention, did not gain many, if any, adherents, see NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, at 129-39, 163 (Reported by James Madison) (1987), and the fact that both the Federalists and Antifederalists framed their arguments assuming that state sovereignty was an important principle suggests that most people held this view. Thus, absent strong evidence to the contrary, it is reasonable to presume that the delegates voted for the Constitution based on the argument made in the ratification debates that the Constitution would preserve state sovereignty.
159. See ST. GEORGE TUCKER'S BLACKSTONE'S COMMENTARIES, supra note 49, at 151; see also H. Jefferson Powell, The Principles of '98: An Essay in Historical Retrieval, 80 VA. L. REV. 689, 692 (1994).
160. See ST. GEORGE TUCKER'S BLACKSTONE'S COMMENTARIES, supra note 49, at 151; see also H. Jefferson Powell, The Principles of '98: An Essay in Historical Retrieval, 80 VA. L. REV. 689, 692 (1994).
161. See, e.g., Kentucky Resolutions of 1798, reprinted in JEFFERSON POWELL, LANGUAGES OF POWER 130 (1991); Madison's Report on the Virginia Resolutions, in 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 546, 548 (Jonathan Elliot ed., 1836).
162. See, e.g., Kentucky Resolutions of 1798, reprinted in JEFFERSON POWELL, LANGUAGES OF POWER 130 (1991); Madison's Report on the Virginia Resolutions, in 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 546, 548 (Jonathan Elliot ed., 1836).
163. See Thomas Jefferson, Draft of the Kentucky Resolutions, in THE WRITINGS OF THOMAS JEFFERSON, 156, 159-60 (Edward Dumbauld ed., 1955) (arguing that states had the right to nullify a federal law that exceeded Congress's authority); see also STORY, supra note 14, at 288-90 & 290 n.2 (distinguishing between commentators who asserted the right to nullify and secede and those who did not).
164. See Thomas Jefferson, Draft of the Kentucky Resolutions, in THE WRITINGS OF THOMAS JEFFERSON, 156, 159-60 (Edward Dumbauld ed., 1955) (arguing that states had the right to nullify a federal law that exceeded Congress's authority); see also STORY, supra note 14, at 288-90 & 290 n.2 (distinguishing between commentators who asserted the right to nullify and secede and those who did not).
165. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 403-04 (1819); 1 STORY, supra note 14, at 307-09.
166. See Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 (1824); 1 STORY, supra note 14, at 397, 399, 401.
167. See 3 STORY, supra note 14, at 758.
168. Although some scholars have attempted to portray Marshall as interpreting the clause to have the broad reach that the modern Supreme Court has, this is simply not true. See, e.g., DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT 170 (1985) ("It bears emphasizing that . . . the great exponent of national power expressly acknowledged significant limitations on the reach of federal legislation; it was Marshall's successors who were to expand the commerce power to cover virtually everything."); Epstein, supra note 42, at 1405 ("There is not the slightest hint that Chief Justice Marshall meant to have the 'affects' qualification expand the specific objects to which the 'plenary' commerce clause applies, beyond the control of interstate commercial transactions and the instrumentalities of interstate commerce.").
169. Although some scholars have attempted to portray Marshall as interpreting the clause to have the broad reach that the modern Supreme Court has, this is simply not true. See, e.g., DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT 170 (1985) ("It bears emphasizing that . . . the great exponent of national power expressly acknowledged significant limitations on the reach of federal legislation; it was Marshall's successors who were to expand the commerce power to cover virtually everything."); Epstein, supra note 42, at 1405 ("There is not the slightest hint that Chief Justice Marshall meant to have the 'affects' qualification expand the specific objects to which the 'plenary' commerce clause applies, beyond the control of interstate commercial transactions and the instrumentalities of interstate commerce.").
170. See 1 STORY, supra note 14, at 293-305 (arguing that traditional contract theories regarded the social contract as a continuing one); id. at 305 (arguing that as to the state constitutions and by implication the federal constitution, "the understanding is general, if not universal, that, having been adopted by the majority of the people, the constitution of the state binds the whole community proprio vigore; and is unalterable, unless by the consent of the majority of the people . . . in the manner prescribed by the constitution, or otherwise provided for by the majority.").
171. See supra section III.C.1.b.2.
172. For one version of this argument, see Evan H. Caminker, State Sovereignty and Subordinancy: May Congress Commandeer State Officers to Implement Federal Law?, 95 COLUM. L. REV. 1001, 1054 (1995).
173. See supra section III.C.2.
174. See supra notes 100-01 and accompanying text (arguing that it is more permissible to imply immunities against peripheral portions of Congress's enumerated powers than against more central portions).
175. One reason why the Framers might have believed that the power to control private citizens was more important than the power to act directly on the states was their view that direct regulation of states was ineffective and provoked hostility. See supra notes 103-04 and accompanying text. The Framers might also have believed that the power to regulate private parties and to preempt state laws provided the federal government with more than adequate authority to accomplish their legitimate constitutional functions.
176. See supra notes 81-82 and accompanying text.
177. It is true that the states may be blamed for not acting when Congress preempts their actions, but the failure to act generally provokes less resentment than actually taking a harmful action. In addition to simply preempting state actions, Congress can also attempt to control state action through conditional preemption, where the states are preempted from taking all actions except the specific one that Congress permits. See New York v. United States, 505 U.S. 144, 167-68 (1992). Because laws that preempt conditionally can force the states to choose between taking no action and taking the action desired by Congress, such laws give Congress a tool to induce the states to take the actions that Congress prefers. Nonetheless, the power to commandeer allows Congress to exercise more control over the states than does the power to conditionally preempt. With the power to commandeer, Congress can force the states to take actions that they regard as less attractive than taking no action. Congress cannot do that with the power to conditionally preempt.
178. As discussed above, when Congress taxes or regulates the states, the states will have fewer funds available for services and therefore will appear to operate inefficiently. See supra sections III.C.1.b.1. and III.C.1.b.2 When Congress commandeers the states, the states may be seen as enforcing unpopular laws. See supra notes 98-99 and accompanying text.
179. Another argument against state immunities is based on Congress's power to preempt state taxation. If the Framers conferred such a vast tax preemption power on Congress, one might argue that they would have little reason to be concerned about congressional actions that directly affect the states. Roderick M. Hills, The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813, 850 (1998). This argument resembles the one based on Congress's power to regulate and to preempt state regulations, but there is a potential difference. Under present case law, it is possible that Congress's power to preempt state taxes would allow it to harm the states much more significantly than does Congress's power to regulate. Under existing doctrine, Congress has the authority to preempt state laws that regulate activities that substantially affect interstate commerce. See United States v. Lopez, 514 U.S. 549, 559-60 (1995). Congress therefore appears to have the authority to preempt every state tax (which are forms of state regulation) on activities that substantially affect interstate commerce. Because Congress has rarely exercised its power to preempt state taxes, the Supreme Court has not made clear how far the tax preemption power would extend in particular cases. See HELLERSTEIN & HELLERSTEIN, supra note 101, at 333- 34. It is possible that the Court, following United States v. Lopez, would construe the power narrowly. In that event, the power would raise no different concerns than Congress's power to preempt regulations. But it is also possible that the Court would interpret the tax preemption power more broadly. Under one plausible interpretation, the only state taxes that Congress could not preempt would be ones that are on activities that are deemed to be subject to exclusive state authority, such as family law or education. Congress might then have the power to preempt large portions, if not the entirety, of all existing state taxes, including sales taxes, property taxes, income taxes, and use taxes. If the courts were to construe the tax preemption power broadly, then Congress could impose enormous harm on the states. Even if the states could continue to collect taxes in the narrow areas where they have exclusive authority, they would still be harmed more significantly than by Congress's power to preempt regulations if, as seems likely, very few desirable taxes are in areas, such as family and educational matters, that are exclusive. Although preemptions of state regulations prevent the state from enforcing particular laws, preemptions of state taxes prevent the state from deriving revenue that can be used to finance activities in all other areas. The tremendous danger that a broad interpretation of Congress's tax preemption power poses suggests that it should be interpreted narrowly. Moreover, because Congress has rarely exercised this power, a narrow interpretation would not upset existing statutes. But if, for some reason, the power were not construed narrowly, then there would be a strong argument for finding an immunity against congressional preemptions of state taxes. See also THE FEDERALIST No. 32, at 202 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (arguing for a narrow interpretation of Congress's tax preemption power, because that power would "alienate and extinguish a pre-existing right of sovereignty).
180. Another argument against state immunities is based on Congress's power to preempt state taxation. If the Framers conferred such a vast tax preemption power on Congress, one might argue that they would have little reason to be concerned about congressional actions that directly affect the states. Roderick M. Hills, The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813, 850 (1998). This argument resembles the one based on Congress's power to regulate and to preempt state regulations, but there is a potential difference. Under present case law, it is possible that Congress's power to preempt state taxes would allow it to harm the states much more significantly than does Congress's power to regulate. Under existing doctrine, Congress has the authority to preempt state laws that regulate activities that substantially affect interstate commerce. See United States v. Lopez, 514 U.S. 549, 559-60 (1995). Congress therefore appears to have the authority to preempt every state tax (which are forms of state regulation) on activities that substantially affect interstate commerce. Because Congress has rarely exercised its power to preempt state taxes, the Supreme Court has not made clear how far the tax preemption power would extend in particular cases. See HELLERSTEIN & HELLERSTEIN, supra note 101, at 333-34. It is possible that the Court, following United States v. Lopez, would construe the power narrowly. In that event, the power would raise no different concerns than Congress's power to preempt regulations. But it is also possible that the Court would interpret the tax preemption power more broadly. Under one plausible interpretation, the only state taxes that Congress could not preempt would be ones that are on activities that are deemed to be subject to exclusive state authority, such as family law or education. Congress might then have the power to preempt large portions, if not the entirety, of all existing state taxes, including sales taxes, property taxes, income taxes, and use taxes. If the courts were to construe the tax preemption power broadly, then Congress could impose enormous harm on the states. Even if the states could continue to collect taxes in the narrow areas where they have exclusive authority, they would still be harmed more significantly than by Congress's power to preempt regulations if, as seems likely, very few desirable taxes are in areas, such as family and educational matters, that are exclusive. Although preemptions of state regulations prevent the state from enforcing particular laws, preemptions of state taxes prevent the state from deriving revenue that can be used to finance activities in all other areas. The tremendous danger that a broad interpretation of Congress's tax preemption power poses suggests that it should be interpreted narrowly. Moreover, because Congress has rarely exercised this power, a narrow interpretation would not upset existing statutes. But if, for some reason, the power were not construed narrowly, then there would be a strong argument for finding an immunity against congressional preemptions of state taxes. See also THE FEDERALIST No. 32, at 202 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (arguing for a narrow interpretation of Congress's tax preemption power, because that power would "alienate and extinguish a pre-existing right of sovereignty).
181. Another argument against state immunities is based on Congress's power to preempt state taxation. If the Framers conferred such a vast tax preemption power on Congress, one might argue that they would have little reason to be concerned about congressional actions that directly affect the states. Roderick M. Hills, The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813, 850 (1998). This argument resembles the one based on Congress's power to regulate and to preempt state regulations, but there is a potential difference. Under present case law, it is possible that Congress's power to preempt state taxes would allow it to harm the states much more significantly than does Congress's power to regulate. Under existing doctrine, Congress has the authority to preempt state laws that regulate activities that substantially affect interstate commerce. See United States v. Lopez, 514 U.S. 549, 559-60 (1995). Congress therefore appears to have the authority to preempt every state tax (which are forms of state regulation) on activities that substantially affect interstate commerce. Because Congress has rarely exercised its power to preempt state taxes, the Supreme Court has not made clear how far the tax preemption power would extend in particular cases. See HELLERSTEIN & HELLERSTEIN, supra note 101, at 333- 34. It is possible that the Court, following United States v. Lopez, would construe the power narrowly. In that event, the power would raise no different concerns than Congress's power to preempt regulations. But it is also possible that the Court would interpret the tax preemption power more broadly. Under one plausible interpretation, the only state taxes that Congress could not preempt would be ones that are on activities that are deemed to be subject to exclusive state authority, such as family law or education. Congress might then have the power to preempt large portions, if not the entirety, of all existing state taxes, including sales taxes, property taxes, income taxes, and use taxes. If the courts were to construe the tax preemption power broadly, then Congress could impose enormous harm on the states. Even if the states could continue to collect taxes in the narrow areas where they have exclusive authority, they would still be harmed more significantly than by Congress's power to preempt regulations if, as seems likely, very few desirable taxes are in areas, such as family and educational matters, that are exclusive. Although preemptions of state regulations prevent the state from enforcing particular laws, preemptions of state taxes prevent the state from deriving revenue that can be used to finance activities in all other areas. The tremendous danger that a broad interpretation of Congress's tax preemption power poses suggests that it should be interpreted narrowly. Moreover, because Congress has rarely exercised this power, a narrow interpretation would not upset existing statutes. But if, for some reason, the power were not construed narrowly, then there would be a strong argument for finding an immunity against congressional preemptions of state taxes. See also THE FEDERALIST No. 32, at 202 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (arguing for a narrow interpretation of Congress's tax preemption power, because that power would "alienate and extinguish a pre-existing right of sovereignty).
182. See Berger, supra note 42, at 702-03; Epstein, supra note 42, at 1393-95. There is also a strong argument that the original meaning of the Constitution permitted Congress to spend funds only within its enumerated powers. See DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY 227-31 (1990).
183. See Berger, supra note 42, at 702-03; Epstein, supra note 42, at 1393-95. There is also a strong argument that the original meaning of the Constitution permitted Congress to spend funds only within its enumerated powers. See DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY 227-31 (1990).
184. See Berger, supra note 42, at 702-03; Epstein, supra note 42, at 1393-95. There is also a strong argument that the original meaning of the Constitution permitted Congress to spend funds only within its enumerated powers. See DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY 227-31 (1990).
185. See U.S. CONST. art. I, § 3, cl. 1 (amended 1913). In addition, prior to the Sixteenth Amendment, the Constitution limited Congress's power to impose direct taxes on income. See U.S. CONST. art. I, § 9, cl. 4 (amended 1913).
186. It is true that the danger from commandeering would be even greater once the Commerce Clause was expanded to its modern scope, because Congress could then require the states to enforce a vast array of regulatory laws. Nonetheless, commandeering was still a potentially serious problem prior to that expansion, as Congress could commandeer under its other enumerated powers as well as under the original understanding of the Commerce Clause.
187. See U.S. CONST. amend. XVII.
188. See supra section III.C.1.b.2
189. As discussed above, if one considers the structure of the original Constitution when interpreting the term "State," it is a close question whether the states possess immunities against taxation and regulation, while the states would be unlikely to possess an immunity against regulation. By contrast, I have argued that all three immunities exist if one considers the structure of the contemporary Constitution.
190. U.S. CONST. art. V (emphasis added).
191. See supra note notes 16-17 and accompanying text.
192. In the statutory context, Justice Scalia has argued that judges should interpret a provision in one statute in accordance with the structure established by later enactments not simply in the same statute, but in the entire corpus juris. See West Virginia University Hosps. v. Casey, 499 U.S. 83, 100-01 (1991) (Scalia, J.). While Justice Scalia's position is similar to the one that I defend here, in my view it is on weaker ground. First, Justice Scalia does not attempt to explain how his position is compatible with originalism, and even appears to admit that originalism suggests a different position. See id. Second, my argument is that the Constitution should be interpreted as an integrated whole over time. The analogous position in the statutory context would be that a single statute should be interpreted as an integrated whole over time. Justice Scalia argues, however, that the entire corpus juris should be interpreted as an integrated whole. While it is reasonable to assume that those who amended a statute considered the overall structure of that statute, it is more questionable to assume that legislators who amend a statute take into account the implications for all other laws.
193. It is important to distinguish this approach to interpreting an amended document from other approaches that attempt to translate the Framers' ideas into modern circumstances. See, e.g., Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165 (1993); Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125. The approach defended here does not translate. Rather, it interprets the document in accordance with originalist canons. Although it may interpret a provision in the original Constitution differently after a constitutional amendment, that is due to actual changes in the Constitution rather than to changes in circumstances that an interpreter believes would have caused the Framers to have drafted the document differently.
194. It is important to distinguish this approach to interpreting an amended document from other approaches that attempt to translate the Framers' ideas into modern circumstances. See, e.g., Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165 (1993); Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125. The approach defended here does not translate. Rather, it interprets the document in accordance with originalist canons. Although it may interpret a provision in the original Constitution differently after a constitutional amendment, that is due to actual changes in the Constitution rather than to changes in circumstances that an interpreter believes would have caused the Framers to have drafted the document differently.
195. It is important to distinguish this approach to interpreting an amended document from other approaches that attempt to translate the Framers' ideas into modern circumstances. See, e.g., Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165 (1993); Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125. The approach defended here does not translate. Rather, it interprets the document in accordance with originalist canons. Although it may interpret a provision in the original Constitution differently after a constitutional amendment, that is due to actual changes in the Constitution rather than to changes in circumstances that an interpreter believes would have caused the Framers to have drafted the document differently.
196. It might be argued that the intent of the Seventeenth Amendment was to weaken the states and therefore it should count against state immunities rather than for them. If that had been the intent of the Amendment, then that intent would be a counterweight to the argument that the constitutional structure the Amendment established supports state immunities. But the background of the Amendment suggests that it was not intended to weaken the states, but instead to serve other purposes, such as decreasing corruption and reducing delay in the election of Senators. See Vikram David Amar, Indirect Effects of Direct Election: A Structural Examination of the Seventeenth Amendment, 49 VAND. L. REV. 1347, 1354 (1996); Jay S. Bybee, Ulysses at the Mast: Democracy, Federalism, and the Sirens' Song of the Seventeenth Amendment, 91 NW. U. L. REV. 500, 538 (1997). Indeed, the legal landscape at the time provides additional evidence that the Amendment was not intended to undermine state immunities. When the Seventeenth Amendment was adopted, the Supreme Court had held that the states enjoyed tax immunity, see Collector v. Day, 78 U.S. (11 Wall.) 113 (1870), and that the federal government could not require the states to enforce federal law. See Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1860); see generally Hills, supra note 139, at 839-53 (1998). The framers (and ratifiers) of the Seventeenth Amendment knew that stare decisis was the normal rule and therefore would have expected these immunities to continue after the Amendment was enacted. Indeed, the framers of the Amendment might have relied on these decisions when deciding to enact the amendment. If the Constitution had not been understood to protect the states against federal taxation and commandeering, the Framers might have been unwilling to reduce the influence of the states in the Senate. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 35 (Scalia, J., dissenting). To the extent that the Framers relied upon these Supreme Court decisions, their precedential force would be greatly enhanced.
197. It might be argued that the intent of the Seventeenth Amendment was to weaken the states and therefore it should count against state immunities rather than for them. If that had been the intent of the Amendment, then that intent would be a counterweight to the argument that the constitutional structure the Amendment established supports state immunities. But the background of the Amendment suggests that it was not intended to weaken the states, but instead to serve other purposes, such as decreasing corruption and reducing delay in the election of Senators. See Vikram David Amar, Indirect Effects of Direct Election: A Structural Examination of the Seventeenth Amendment, 49 VAND. L. REV. 1347, 1354 (1996); Jay S. Bybee, Ulysses at the Mast: Democracy, Federalism, and the Sirens' Song of the Seventeenth Amendment, 91 NW. U. L. REV. 500, 538 (1997). Indeed, the legal landscape at the time provides additional evidence that the Amendment was not intended to undermine state immunities. When the Seventeenth Amendment was adopted, the Supreme Court had held that the states enjoyed tax immunity, see Collector v. Day, 78 U.S. (11 Wall.) 113 (1870), and that the federal government could not require the states to enforce federal law. See Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1860); see generally Hills, supra note 139, at 839-53 (1998). The framers (and ratifiers) of the Seventeenth Amendment knew that stare decisis was the normal rule and therefore would have expected these immunities to continue after the Amendment was enacted. Indeed, the framers of the Amendment might have relied on these decisions when deciding to enact the amendment. If the Constitution had not been understood to protect the states against federal taxation and commandeering, the Framers might have been unwilling to reduce the influence of the states in the Senate. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 35 (Scalia, J., dissenting). To the extent that the Framers relied upon these Supreme Court decisions, their precedential force would be greatly enhanced.
198. It might be argued that the intent of the Seventeenth Amendment was to weaken the states and therefore it should count against state immunities rather than for them. If that had been the intent of the Amendment, then that intent would be a counterweight to the argument that the constitutional structure the Amendment established supports state immunities. But the background of the Amendment suggests that it was not intended to weaken the states, but instead to serve other purposes, such as decreasing corruption and reducing delay in the election of Senators. See Vikram David Amar, Indirect Effects of Direct Election: A Structural Examination of the Seventeenth Amendment, 49 VAND. L. REV. 1347, 1354 (1996); Jay S. Bybee, Ulysses at the Mast: Democracy, Federalism, and the Sirens' Song of the Seventeenth Amendment, 91 NW. U. L. REV. 500, 538 (1997). Indeed, the legal landscape at the time provides additional
199. For arguments that the states can protect themselves in the political process, see Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954); JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980); see also Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485 (1994). For refutations of the claim, see Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752, 790-99 (1995); Yoo, supra note 2.
200. For arguments that the states can protect themselves in the political process, see Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954); JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980); see also Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485 (1994). For refutations of the claim, see Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752, 790-99 (1995); Yoo, supra note 2.
201. For arguments that the states can protect themselves in the political process, see Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954); JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980); see also Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485 (1994). For refutations of the claim, see Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752, 790-99 (1995); Yoo, supra note 2.
202. For arguments that the states can protect themselves in the political process, see Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954); JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980); see also Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485 (1994). For refutations of the claim, see Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752, 790-99 (1995); Yoo, supra note 2.
203. For arguments that the states can protect themselves in the political process, see Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954); JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980); see also Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485 (1994). For refutations of the claim, see Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752, 790-99 (1995); Yoo, supra note 2.
204. The state immunity against commandeering also depends to a certain extent on whether judges should consider the constitutional structure established by the modern interpretation of the Commerce Clause.
205. See Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723 (1988) (arguing that the general reach of the Commerce Clause has become so embedded in existing institutions that it cannot be overruled).
206. That is, by not applying the principle that would ignore the constitutional structure established by an erroneous interpretation.
207. See U.S. CONST. art. III, § 1.
208. See Seminole Tribe v. Florida, 517 U.S. 44, 54-55 (1996).
209. U.S. CONST. amend. XI.
210. See, e.g., Amar, supra note 75, at 1475.
211. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 29 (1989) (Scalia, J., dissenting).
212. As Justice Scalia states, "The evidence is strong that the jurisdictional grants in Article III of the Constitution did not automatically eliminate underlying state sovereign immunity, and even stronger that that assumption was implicit in the Eleventh Amendment." Id. at 33.
213. See. e.g., Seminole Tribe, 517 U.S. at 58, 67, 72; Union Gas, 491 U.S. at 34.
214. See, e.g., Seminole Tribe, 517 U.S. at 67-68 (quoting Principality of Monaco v. Mississippi, 292 U.S. 313, 321-23 (1934)); Union Gas, 491 U.S. at 33.
215. Indeed, if one must view the Amendment as expressing an intent on sovereign immunity, it appears to suggest that sovereign immunity extends only to cases brought against a state by citizens of another or a foreign state.
216. See Seminole Tribe, 517 U.S. at 54.
217. See id.; see also Hans v. Louisiana, 134 U.S. 1, 12-14 (1889).
218. It should be noted that Congress's power to impose burdens on the states by abrogating their sovereign immunity has greatly expanded as a result of the Court's extension of the commerce power. Thus, the modern interpretation of the Commerce Clause enhances the structural argument for recognizing state sovereign immunity. Cf. section III.D.2.
219. See, e.g., United States v. Mississippi, 380 U.S. 128 (1965) (state sovereign immunity does not protect against suit by the United States); United States v. Texas, 143 U.S. 621 (1892) (same); South Dakota v. North Carolina, 192 U.S. 286 (1904) (state sovereign immunity does not protect against suit by another state).
220. See, e.g., Ex parte Young, 209 U.S. 123 (1908).
221. See generally Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 HARV. L. REV. 1, 9-16 (1963).
222. See Edelman v. Jordan, 415 U.S. 651, 664-71 (1973).
223. Private actions seeking damages for past behavior are more dangerous than lawsuits for prospective relief. If a state has violated federal law, a lawsuit for retroactive relief may require it to pay damages whereas a lawsuit for prospective relief will not authorize the payment of damages, but only require that the state conform to federal law in the future. It is true that in some cases a holding that the state must comply with federal law prospectively may force the state to incur significant future financial costs. But even in these cases, retroactive relief is more dangerous, because it may impose liability on the states for actions taken prior to the court's judgment and for actions that the states mistakenly believed were legal.
224. See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
225. See supra notes 112-13 and accompanying text.
226. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).
227. For a discussion of Congress's consideration of the amendment, see DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS 195-98 (1997).
228. See, e.g., Amar, supra note 75; see also David J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1. Under this view, the Eleventh Amendment extends only to party based jurisdiction. It does not bar any lawsuits based on another head of jurisdiction, such as federal question jurisdiction.
229. See, e.g., Amar, supra note 75; see also David J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1. Under this view, the Eleventh Amendment extends only to party based jurisdiction. It does not bar any lawsuits based on another head of jurisdiction, such as federal question jurisdiction.
230. See Seminole Tribe v. Florida, 517 U.S. 44, 70 ("The text dealt in terms only with the problem presented by the decision in Chisholm; in light of the fact that the federal courts did not have federal question jurisdiction at the time the Amendment was passed . . . , it seems unlikely that much thought was given to the prospect of federal question jurisdiction over the States."). This argument assumes that the Framers of the Eleventh Amendment were extremely shortsighted, and ignores that a version of the amendment was introduced that would have covered federal question cases, but was not enacted. See id. at 110-12 (Souter, J., dissenting) (discussing proposed amendment).
231. See Henry Paul Monaghan, The Sovereign Immunity "Exception", 110 HARV. L. REV. 102, 125 (1996).
232. See Hilton v. South Carolina Pub. Rys. Comm., 502 U.S. 197, 205 (1991); Will v. Michigan Dep't of State Police, 491 U.S. 58, 63-64 (1989); Maine v. Thiboutot, 448 U.S. 1, 9, n.7 (1980).
233. The Supreme Court has granted certiorari in a case which may allow it to address whether the structure of the Constitution protects state sovereign immunity in state courts. In Alden v. Maine, 715 A.2d 172, cert. granted, 119 S. Ct. 443 (1998), the Supreme Court of Maine held that the Constitution prevents Congress from abrogating state sovereign immunity in state courts. The court relied on the constitutional background principle of state sovereign immunity, as reflected in the Eleventh Amendment.
234. Cf. supra notes 33-38 and accompanying text (arguing that interpretations based on structure rather than text violate principles of textualism).