Federal Lawmaking and the Role of Structure in Constitutional Interpretation

California Law Review

Volumn 96, Issue 3, 2008, Pages 699-730

  Clark, Bradford R ^a,b  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

^b HARVARD LAW SCHOOL   (United States)

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EID: 47749104529     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (314)

1. See Bradford R. Clark, Erie's Constitutional Source, 95 CALIF. L. REV. 1289 (2007) [hereinafter Clark, Erie's Constitutional Source], published as part of a symposium examining the work of Professor Paul Mishkin, including his influential essay on Erie. See Paul J. Mishkin, Some Further Last Words on Erie - The Thread, 87 HARV. L. REV. 1682 (1974).
2. 304 U.S. 64 (1938).
3. U.S. CONST. art. VI, cl. 2.
4. See Craig Green, Repressing Erie's Myth, 96 CALIF. L. REV. 595 (2008).
5. See Craig Green, Erie and Problems of Constitutional Structure: A Response to Professor Clark, 96 CALIF. L. REV. 661 (2008).
6. Erie, 304 U.S. at 78.
7. CHARLES L. BLACK, JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW 7-8 (1969).
8. Michael C. Dorf, Interpretive Holism and the Structural Method, or How Charles Black Might Have Thought About Campaign Finance Reform and Congressional Timidity, 92 GEO. L.J. 833, 843 (2004).
9. U.S. CONST.art. VI, cl. 2.
10. 41 U.S. (16 Pet.) 1 (1842), overruled by Erie, 304 U.S. 64.
11. Erie, 304 U.S. at 77-78;
12. see also id. at 79 (stating that the Swift doctrine was '"an unconstitutional assumption of powers by courts of the United States'") (citing Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting));
13. id. at 80 ("[I]n applying the [Swift] doctrine this Court and the lower courts have invaded rights which in our opinion are reserved by the Constitution to the several States.").
14. See Clark, Erie's Constitutional Source, supra note 1, at 1306-11.
15. U.S. CONST. art. VI, cl. 2 (emphasis added).
16. Herbert Wechsler coined the phrase "political safeguards of federalism" to refer to the role of the states "in the composition and selection of the central government." 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, 543 (1954).
17. See U.S. CONST. art. V. In addition to authorizing Congress to propose amendments, Article V provides that "on the Application of the Legislatures of two thirds of the several States, [Congress] shall call a Convention for proposing Amendments . .. ." Id. This procedure has yet to be used.
18. See U.S. CONST. art. I, § 7. In passing, Green notes Peter Strauss' argument that "Laws of the United States" may not be restricted to federal statutes and may include federal common law.
19. See Green, supra note 5, at 664 n.14 (citing Peter Strauss, The Perils of Theory, 83 NOTRE DAME L. REV. (forthcoming 2008)).
20. For my response, see Bradford R. Clark, The Procedural Safeguards of Federalism, 83 NOTRE DAME L. REV. (forthcoming 2008).
21. See U.S. CONST. art. II, § 2, cl. 2.
22. For example, the Seventeenth Amendment has reduced the states' influence in the Senate by replacing appointment of Senators by state legislatures with election by popular vote. See U.S. CONST. amend. XVII. Changes in constitutional law have also limited the states' ability to influence the House of Representatives through control over voter qualifications and districting.
23. See U.S. CONST. amend. XV (prohibiting voting restrictions based on race);
24. U.S. CONST. amend. XIX (prohibiting voting restrictions based on sex);
25. U.S. CONST. amend. XXTV (prohibiting poll taxes);
26. U.S. CONST. amend. XXVI (prohibiting voting restrictions based on age for voters over eighteen). Finally, the states' modern practice of appointing presidential electors on the basis of winner-take-all popular elections has reduced the role of state legislatures in selecting the President, and all but eliminated the possibility that the President will be selected by the House of Representatives voting by states.
27. See McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO. L.J. 705, 707 & n.5 (1992) (the author "McNollgast" is actually a hybrid pseudonym for Mathew D. McCubbins, Roger G. Noll, and Barry R. Weingast).
28. See John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 74-75 (2001) (discussing the supermajority requirement inherent in American bicameralism);
29. William T. Mayton, The Possibilities of Collective Choice: Arrow's Theorem, Article I, and the Delegation of Legislative Power to Administrative Agencies, 1986 DUKE L.J. 948, 956 (same);
30. Michael B. Rappaport, Amending the Constitution to Establish Fiscal Supermajority Rules, 13 J.L. & POL. 705, 712 (1997) (noting that the presidential veto, in addition to bicameralism, also establishes an effective supermajority).
31. See Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments, 46 WM. & MARY L. REV. 1733, 1792 (2005) ("A national government that can act only with difficulty, after all, will tend to leave considerable scope for state autonomy.").
32. See Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321, 1328-72 (2001) [hereinafter Clark, Separation of Powers];
33. see also INS v. Chadha, 462 U.S. 919, 951 (1983) ("It emerges clearly that the prescription for legislative action in Art. I, §§ 1, 7, represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.");
34. see also infra notes 145-149 and accompanying text.
35. The only potential exception is the possibility that the states themselves will trigger a convention for proposing constitutional amendments under Article V, thus relieving the House and Senate of this responsibility. See supra note 15.
36. See 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 437 (Max Farrand ed., 1911) [hereinafter CONVENTION RECORDS] (James Madison, June 27, 1787) (statement of Luther Martin).
37. See id. at 444-45 (James Madison, June 28, 1787) (statement of Luther Martin).
38. 2 CONVENTION RECORDS, supra note 24, at 15 (James Madison, July 16, 1787).
39. U.S. CONST. art. V.
40. 2 CONVENTION RECORDS, supra note 24, at 22 (Secretary's Journal, July 17, 1787).
41. See 1 CONVENTION RECORDS, supra note 24, at 155-56 (James Madison, June 7, 1787) (statement of George Mason: "The State Legislatures . . . ought to have some means of defending themselves [against] encroachments of the Natl. Govt. ... And what better means can we provide than the giving them some share in, or rather to make them a constituent part of, the Natl. Establishment").
42. The Founders recognized that the procedural safeguards of federalism would make it more difficult to adopt "the supreme Law of the Land," but thought that "[t]he injury which may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones." THE FEDERALIST NO. 73, at 442 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
43. See Clark, Erie's Constitutional Source, supra note 1, at 1291-94.
44. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). As Professor Ely points out, the Erie opinion "has been faulted for failing to indicate precisely what constitutional provision Swift v. Tyson's interpretation of the Rules of Decision Act violated." John Hart Ely, The Irrepressible Myth of Erie, 87 HARV. L. REV. 693, 702 (1974).
45. By 1938, or soon thereafter, the Court would likely have recognized Congress's power to prescribe the duty of care that interstate railroads owe to pedestrians. See Wickard v. Filburn, 317 U.S. 111 (1942) (interpreting the Commerce Clause to permit Congress to regulate farmers' consumption of home-grown wheat);
46. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 36-39 (1937) (stating that Congress's power to regulate commerce is "plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it" (citations and internal quotations omitted)). In any event, "even if the Erie Court meant to endorse a narrow[] view of congressional power, that view ... was arguably dictum . . . because Congress had not enacted an applicable federal statute."
47. Clark, Erie's Constitutional Source, supra note 1, at 1298-99.
48. Of course, the Supremacy Clause refers not only to the "Constitution" and "Laws," but also to "Treaties." See U.S. CONST. art. VI, cl. 2. Perhaps the Erie Court overlooked treaties because, by comparison, they provide a relatively infrequent basis for displacing state law.
49. INS v. Chadha, 462 U.S. 919, 951 (1983).
50. Of course, there are potential counterexamples. For example, federal administrative agencies sometimes promulgate rules that preempt state law. See infra notes 108-122 and accompanying text. Increasingly, however, commentators have argued that federal courts should not defer to agency determinations that state law is preempted absent clear language in the statute preempting state law.
51. See, e.g., William N. Eskridge, Jr., Vetogates, Chevron, Preemption, 83 NOTRE DAME L. REV. (forthcoming 2008);
52. Amanda Frost, Judicial Review of FDA Preemption Determinations, 54 FOOD & DRUG L.J. 367 (1999);
53. Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737 (2004). The Supreme Court has suggested that preemption turns on congressional authorization.
54. See La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374 (1986) ("[A]n agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it.");
55. Clark, Separation of Powers, supra note 22, at 1430-38. Another potential counterexample is the rise of sole executive agreements - i.e., international agreements made by the President alone without the participation or assent of either house of Congress. The Court has recently stated that such agreements are generally "fit to preempt state law, just as treaties are." Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 416 (2003).
56. For a critique of this position, see Bradford R. Clark, Domesticating Sole Executive Agreements, 93 V.A. L. REV. 1573 (2007). A complete examination of these doctrines is beyond the scope of this Essay.
57. Erie, 304 U.S. at 78. Modern federal common law arguably contradicts this understanding of Erie. Yet even in this context, however, the Supreme Court has rejected openended federal common lawmaking and confined judicial lawmaking to specific enclaves.
58. See Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245, 1250 (1996) [hereinafter Clark, Federal Common Law];
59. infra notes 72-78 and accompanying text.
60. Erie, 304 U.S. at 78.
61. Id.
62. Although not invoking the Supremacy Clause, several influential commentators have essentially read Erie this way. See Alfred Hill, The Erie Doctrine and the Constitution, 53 Nw. U. L. REV. 427, 441 (1958) ("[E]ven if a particular area is one in which the federal government has power to make independent law, it does not follow that a federal court also has power to do so, for the power of the federal courts does not correspond in all respects with the power of the federal government as a whole.");
63. Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395, 431 (1995) (explaining that the Swift doctrine raised both federalism and separation of powers concerns because it "seemed both as if federal courts were exercising the power of state legislatures, and as if federal courts were exercising the power of state legislatures");
64. Mishkin, supra note 1, at 1683 (challenging the notion that "the courts would have the same range of lawmaking power as Congress-that any time Congress could validly displace state law, the federal courts are constitutionally equally empowered to do so" (citation omitted));
65. Henry P. Monaghan, Book Review, 87 HARV. L. REV. 889, 892 (1974) (reviewing PAUL M. BATOR ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM (2d ed. 1973)) ("Erie is, fundamentally, a limitation on the federal court's power to displace state law absent some relevant constitutional or statutory mandate which neither the general language of article III nor the jurisdictional statute provides.");
66. see also Henry P. Monaghan, The Supreme Court, 1974 Term-Foreword: Constitutional Common Law, 89 HARV. L. REV. 1, 11-12 (1975)
67. [hereinafter Monaghan, Constitutional Common Law] ("[Erie] recognizes that federal judicial power to displace state law is not coextensive with the scope of dormant congressional power. Rather, the Court must point to some source, such as a statute, treaty, or constitutional provision, as authority for the creation of substantive federal law." (citations omitted)).
68. Balt. & Ohio R.R. Co. v. Baugh, 149 U.S. 368, 401 (1893) (Field, J., dissenting).
69. See Lessig, supra note 40, at 431 (explaining that by the time Erie was decided, changing conceptions of state law revealed the "fundamental[] political reality" that "what a judge was doing when he decided an open question of common law was making law rather than finding law").
70. Erie, 304 U.S. at 80.
71. See also Clark, Separation of Powers, supra note 22, at 1414 ("Careful analysis reveals that Erie's constitutional holding is best understood as an attempt to enforce federal lawmaking procedures and the political safeguards of federalism they incorporate."). Green emphatically denies that Erie rests on constitutional grounds. He "would set aside Erie and the Supremacy Clause as irrelevant," Green, supra note 5, at 669 n.44, and replace them with "a better way to identify" the proper role of federal judges in diversity cases.
72. Id. This position seems unduly dismissive of the contrary conclusion-reached after years of experience applying the Swift doctrine-by such renowned Justices as Holmes and Brandeis, who explicitly found the doctrine to be "unconstitutional."
73. Erie, 304 U.S. at 77-78 ("[T]he unconstitutionality of the course pursued . . . compels us to [abandon the Swift doctrine.]").
74. Id. at 79 (quoting Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting)). Even after Erie, federal courts risk usurping state authority by "predicting" how the state's highest court would rule when state law is unclear.
75. See Bradford R. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie, 145 U. PA. L. REV. 1459, 1495-1517 (1997)
76. [hereinafter Clark, Ascertaining the Laws]. Federal courts can avoid this risk by certifying unsettled questions of state law to the state's highest court when certification is available.
77. See id. at 1544-56.
78. 462 U.S. 919(1983).
79. Green, supra note 5, at 679 (quoting INS v. Chadha, 462 U.S. 919, 951 (1983)).
80. Id. at 666.
81. Id. at 665.
82. Id. at 666.
83. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938)
84. (quoting Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 534 (1928) (Holmes, J., dissenting)).
85. Id. (quoting Black & White Taxicab, 276 U.S. at 533 (Holmes, J., dissenting)).
86. See Clark, Ascertaining the Laws, supra note 44, at 1479-81.
87. See Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 COLUM. L. REV. 489, 498 (1954) ("The federal law which governs the exercise of state authority is obviously interstitial law, assuming the existence of, and depending for its impact upon, the underlying bodies of state law.").
88. U.S. CONST. art. IV, § 4.
89. See, e.g., Luther v. Borden, 48 U.S. (7 How.) 1 (1849).
90. Erie, 304 U.S. at 78.
91. Id. at 79 (quoting Black & White Taxicab, 276 U.S. at 535 (Holmes, J., dissenting)).
92. See id. at 78.
93. Swift made this point explicitly: "It is observable that the courts of New York do not found their decisions upon this [issue,] upon any local statute, or positive, fixed, or ancient local usage: but they deduce the doctrine from the general principles of commercial law." Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18 (1842). On questions of this kind, the Court stressed that "the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies . . . what is the just rule furnished by the principles of commercial law to govern the case."
94. Id. at 19.
95. For this reason, as I have previously explained, Swift's application of the law merchant was arguably defensible when decided in 1842. See Clark, Federal Common Law, supra note 37, at 1276-92.
96. Green finds this idea "[s]trange[]" and "confused." Green, supra note 5, at 664 n.17.
97. My assessment of Swift, however, should come as no real surprise to anyone familiar with the history and conception of general law during the Swift era. See, e.g., William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 HARV. L. REV. 1513 ( 1984).
98. See Clark, Ascertaining the Laws, supra note 44, at 1479-81.
99. See Erie, 304 U.S. at 78. Thus, Erie's assertion that "[tjhere is no federal general common law," id., was simply a way of paraphrasing the Supremacy Clause's negative implication that there is no body of non-supreme federal law capable of displacing state law in diversity cases. Green finds this reading of Erie "surprising[]" and "substantially nontextual."
100. Green, supra note 5, at 666 n.28.
101. He suggests that if Erie prohibits federal courts from applying non-supreme general law in diversity cases, then it must also prevent Congress and the Executive Branch from promulgating non-supreme internal, intra-branch rules by means other than bicameralism and presentment.
102. See id. at 666-67.
103. Green's position overlooks a crucial distinction. Erie considered the constitutionality of displacing the rights and duties of private litigants under state law in favor of federal judge-made rules. Such displacement is not simply a matter of "federal courts' internal operations," id. at 667 n.32, but the core question under the Supremacy Clause-that is, whether an applicable provision of "the supreme Law of the Land" requires otherwise applicable state law to yield. By contrast, state law does not purport to govern the internal operations of Congress or the Executive Branch, so their intra-branch rules do not even implicate the Supremacy Clause.
104. Green, supra note 5, at 671
105. (quoting Clark, Federal Common Law, supra note 37, at 1247
106. (quoting PAUL M. BATOR ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 863 (3d ed. 1988))).
107. Id. at 671. Similarly, Green questions whether one can persuasively distinguish between permissible and impermissible "enclaves" of federal common law.
108. See id. at 672.
109. RICHARD H. FALLON, JR. ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 685 (5th ed. 2003). In my prior work, I quoted the same definition from an earlier edition of the Hart & Wechsler casebook.
110. See Clark, Federal Common Law, supra note 37, at 1247
111. (quoting PAUL M. BATOR ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 863 (3d ed. 1988)). Other scholars have used similar definitions.
112. See Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 HARV. L. REV. 881, 890 (1986) (stating that federal common law refers to "any rule of federal law created by a court (usually but not invariably a federal court) when the substance of that rule is not clearly suggested by federal enactments-constitutional or congressional" (citations omitted));
113. Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. CHI. L. REV. 1, 5 (1985) (defining federal common law as "any federal rule of decision that is not mandated on the face of some authoritative federal text-whether or not that rule can be described as the product of 'interpretation' in either a conventional or an unconventional sense").
114. In discussing the distinction between federal common lawmaking and interpretation, Green erroneously suggests that I would not accept a court's citation of a statute or the Constitution as the basis for its decision. See Green, supra note 5, at 671. According to Green, "[Clark] would dig deeper, to detect whether a court is truly making law, rather than interpreting it."
115. Id. Green is incorrect. When a court grounds its decision in a federal statutory or constitutional provision, it is not making federal common law. Of course, a misconstruction of positive federal law is open to criticism as an erroneous interpretation, but such an error does not transform the decision into federal common law.
116. See, e.g., FALLON ET AL., supra note 64, at 685 ("As specific evidence of legislative purpose with respect to the issue at hand attenuates, interpretation shades into judicial lawmaking.");
117. Clark, Federal Common Law, supra note 37, at 1248 n.7 ("In practice, of course, the distinction between federal common lawmaking and statutory (or constitutional) interpretation is often difficult to discern.");
118. Monaghan, Constitutional Common Law, supra note 40, at 31 ("Plainly, any distinction between constitutional exegesis and common law cannot be analytically precise, representing, as it does, differences of degree.").
119. See infra notes 116-122 and accompanying text.
120. See THE FEDERALIST NO. 37, at 225 (James Madison) (Clinton Rossiter ed., 1961) ("All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.").
121. Cf S. Pac. Co. v. Jensen, 244 U.S. 205, 221 (1917) (Holmes, J., dissenting) ("I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.").
122. See Green, supra note 5, at 689-90.
123. See Bradford R. Clark, Constitutional Structure, Judicial Discretion, and the Eighth Amendment, 81 NOTRE DAME L. REV. 1149, 1160-82 (2006)
124. [hereinafter Clark, Structure, Discretion, and the Eighth Amendment] (arguing that the text, history, and structure of the Constitution counsel against unlimited judicial discretion to make federal law).
125. Tex. Indus, v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981) (footnotes omitted).
126. See Clark, Federal Common Law, supra note 37, at 1251. It is an established method of interpretation to understand legal texts and structures in light of background customs and principles.
127. See, e.g., John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2465-76 (2003) (discussing various examples of modern textualists' willingness to use background legal conventions to interpret statutes).
128. See Clark, Federal Common Law, supra note 37, at 1292-1306.
129. See id. at 1316-21.
130. See id. at 1322-31.
131. See id. at 1334-40.
132. See id. at 1368-75.
133. Green, supra note 5, at 670.
134. Id. at 673.
135. Id. at 674.
136. For an earlier, more complete discussion of the legitimacy of these enclaves, see Clark, Federal Common Law, supra note 37, at 1322-60.
137. THE FEDERALIST NO. 8o, at 477 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
138. Rose v. Himely, 8 U.S. (4 Cranch) 241, 282 (1808).
139. THE FEDERALIST NO. 8o, supra note 83, at 477.
140. Clark, Federal Common Law, supra note 37, at 1336 (citations omitted)
141. (quoting JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 866 (Ronald D. Rotunda & John E. Nowak eds., Carolina Academic Press 1987) (1833)).
142. See id. at 1338.
143. DeLovio v. Boit, 7 F. Cas. 418, 426 (CCD. Mass. 1815) (No. 3,776).
144. Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 25, 35 (1870) (affirming Justice Story's holding in DeLovio, 7 F. Cas. 418).
145. See The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1851).
146. Id. at 457.
147. 244 U.S. 205 (1917).
148. Id. at 215 (citations omitted).
149. Am. Dredging Co. v. Miller, 510 U.S. 443, 459 (1994) (Stevens, J., concurring in part and concurring in the judgment);
150. see also id. at 458 ("In my view, Jensen is just as untrustworthy a guide in an admiralty case today as Lochner v. New York, 198 U.S. 45 (1905), would be in a case under the Due Process Clause."). Commentators have echoed Justice Stevens' concerns.
151. See Clark, Federal Common Law, supra note 37, at 1354-60 (explaining that many modern rules governing private maritime cases cannot be reconciled with the constitutional structure);
152. Ernest A. Young, Preemption at Sea, 67 GEO. WASH. L. REV. 273 (1999) (same).
153. Kansas v. Colorado, 206 U.S. 46, 95 (1907).
154. Georgia v. Pa. R.R. Co., 324 U.S. 439, 450 (1945);
155. see also U.S. CONST. art. I, § 10.
156. U.S. CONST. art. I, § 10, cl. 3.
157. See U.S. CONST. art. III, § 2, cl. 1.
158. See Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938).
159. Missouri v. Illinois, 200 U.S. 496, 519 (1906).
160. See Clark, Federal Common Law, supra note 37, at 1328-31.
161. See New Jersey v. Delaware, 291 U.S. 361, 383 (1934). The Thalweg respects the equality of states and protects their rights of navigation by dividing "the river boundaries between states by the middle of the main channel, when there is one, and not by the geographical centre, half way between the banks."
162. Id. at 379 (citations omitted).
163. Connecticut v. Massachusetts, 282 U.S. 660, 670 (1931).
164. Id. at 670-71 (quoting Wyoming v. Colorado, 259 U.S. 419, 465, 470 (1922)).
165. Green, supra note 5, at 673. Green also suggests that my criticism of the Supreme Court's approach in a recent Eighth Amendment decision relies on "a relatively broad view of 'common law.'"
166. Id. at 673.
167. Here again, Green misapprehends my critique. In Roper v. Simmons, 543 U.S. 551 (2005), the Court overruled Stanford v. Kentucky, 492 U.S. 361 (1989), and adopted a novel methodology to invalidate the juvenile death penalty. Both cases purported to apply the Court's modern Eighth Amendment framework first articulated in Trop v. Dulles, 356 U.S. 86 (1958). In Trop, a plurality of the Court announced that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,"
168. id. at 101, but cautioned against "reliance upon personal preferences."
169. Id. at 103. In Stanford, the Court applied this test to uphold the death penalty for sixteen and seventeen year old offenders, and explained that "[i]n determining what standards have 'evolved,' ... we have looked not to our own conceptions of decency," 492 U.S. at 369, but to objective indicia such as "statutes passed by society's elected representatives."
170. Id. at 370. In Roper, by contrast, the Court specifically refused to be bound by "objective indicia of consensus." 543 U.S. at 564. Instead, the Court declared that the Justices must ultimately "determine, in the exercise of [their] own independent judgment, whether the death penalty is a disproportionate punishment for juveniles."
171. Id. Significantly, the Roper majority did not attempt to ground its novel approach "either in the constitutional text or in the specific understanding of the text... at any subsequent point prior to Trop."
172. Clark, Structure, Discretion, and the Eighth Amendment, supra note 71, at 1156. Accordingly, I took "the Court's underlying [Eighth Amendment] framework as my starting point," and sought "only to examine the consistency of the competing approaches [employed in Stanford and Roper] with broader implications of the constitutional structure."
173. Id. Based on my review of the constitutional structure, I concluded that the Eighth Amendment should not "be understood, without specific historical warrant, to delegate to the judiciary the authority to render independent penological judgments capable of displacing the contrary penological judgments of the state legislatures."
174. Id. at 1160. These quotations are not offered as a "revision or clarification" of my analysis of Roper, Green, supra note 5, at 673 n.64, but merely to highlight my original analysis.
175. See Clark, Federal Common Law, supra note 37, at 1323 & n.367, 1325 & n.376.
176. See id. at 1325-26;
177. see also U.S. CONST. art. Ill, § 2.
178. Green, supra note 5, at 675.
179. Id. at 678.
180. Id.
181. Id. at 677.
182. Id. at 675.
183. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 474-75 (2001).
184. See, e.g., id.;
185. Touby v. United States, 500 U.S. 160 (1991).
186. See, e.g., Atherton v. FDIC, 519 U.S. 213 (1997);
187. O'Melveny & Myers v. FDIC, 512 U.S. 79 (1994).
188. Field v. Clark, 143 U.S. 649, 692 (1892);
189. see also Whitman, 531 U.S. at 472 (stating that Article I "permits no delegation of [legislative] powers");
190. Touby, 500 U.S. at 165 ("Congress may not constitutionally delegate its legislative power to another branch of Government.").
191. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
192. Whitman, 531 U.S. at 474-75
193. (quoting Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting)).
194. Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 326 (2000).
195. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825).
196. Sunstein, supra note 119, at 327.
197. In the course of discussing lawmaking by agencies and courts, Green misconstrues my reference to bicameralism and presentment. He quotes my earlier "claim that 'open-ended lawmaking by courts raises constitutional concerns because it bears a troublesome resemblance to the exercise of legislative power-power apparently reserved by the Constitution to the political branches.'" Green, supra note 5, at 678
198. (quoting Clark, Federal Common Law, supra note 37, at 1248-49 (emphasis added)). Green comments that "[a]s a formal matter, these last three words seem odd, as neither the Supremacy Clause nor Article I assigns 'legislative power' to a 'political branch[]' other than Congress."
199. Id. at 678-79. Of course, Article I, Section 7 provides that Congress may exercise the legislative power of turning a "Bill" into a "Law" only with the participation of the President. U.S. CONST. art. I, § 7, cl. 2.
200. Cf. Baker v. Carr, 369 U.S. 186, 217 (1962) ("Prominent on the surface of any case held to involve a political question is found ... a lack of judicially discoverable and manageable standards for resolving it. . . ."). The Court's disinclination to enforce the non-delegation doctrine does not mean that it has abandoned all efforts to enforce constitutionally prescribed lawmaking procedures. As Professor Sunstein points out, the Court employs certain canons of construction that "actually constitute a coherent and flourishing doctrine, amounting to the contemporary nondelegation doctrine."
201. Sunstein, supra note 119, at 316-17;
202. see also Lisa Schultz Bressman, Schechter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 YALE L.J. 1399, 1409 (2000) ("The Court has used clear-statement rules and the canon of avoidance as surrogates for the nondelegation doctrine.").
203. Green, supra note 5, at 679
204. (quoting INS v. Chadha, 462 U.S. 919, 951 (1983)).
205. Id. at.679.
206. Id. at.675.
207. Chadha, 462 U.S. at 953 n.16.
208. Id.
209. Green, supra note 5, at 681-82.
210. 524 U.S. 417 (1998).
211. Id. at 436
212. (quoting 2 U.S.C. § 691(a) (1994 & Supp. II 1997)).
213. Id. at 437
214. (quoting 2 U.S.C. § 691e(4)(B)-(C) (1994 & Supp. II 1997)).
215. Id. at 438.
216. Id.
217. (quoting INS v. Chadha, 462 U.S. 919, 954 (1983)).
218. See id. at 439-40.
219. Clinton, 524 U.S. at 448.
220. Cf. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (deferring to an agency's decision to change its interpretation of an ambiguous federal statute).
221. See Clark, Separation of Powers, supra note 22, at 1389-90;
222. Lawrence Lessig, Lessons From a Line Item Veto Law, 47 CASE W. RES. L. REV. 1659, 1662 (1997) (arguing that because it authorizes "negation," the Line Item Veto Act presents "perhaps the only case that is an easy case under the non-delegation doctrine").
223. Clinton, 524 U.S. at 446-47.
224. Green, supra note 5, at 686.
225. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
226. See Clark, Ascertaining the Laws, supra note 44, at 1481-87.
227. Wechsler, supra note 14, at 544.
228. See Clark, Federal Common Law, supra note 37, at 1261 ("The Constitution thus reserves substantive lawmaking power to the states and the people both by limiting the powers assigned to the federal government and by rendering that government frequently incapable of exercising them.").
229. Indeed, Article I, Section 7, Clause 2-specifying the procedures for adopting Laws - is the single longest provision of the original Constitution still in force.
230. See Botany Worsted Mills v. United States, 278 U.S. 282, 289 (1929) ("When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.");
231. see also John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 YALE L.J. 1663, 1737 (2004) ("[A]lthough Congress has broad and general authority to compose the institutions of government pursuant to the Necessary and Proper Clause, it cannot give itself authority to pass laws in a manner that deviates from Article I, Section 7's specific requirements of bicameralism and presentment").
232. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803) ("Affirmative words are often, in their operation, negative of other objects than those affirmed . . . .");
233. HENRY CAMPBELL BLACK, HANDBOOK ON THE CONSTRUCTION AND INTERPRETATION OF THE LAWS § 72, at 221 (2d ed. 1911) ("Particularly when a statute gives ... a new power, and provides a specific, full, and adequate mode of executing the power ... the fact that a special mode is prescribed will be regarded as excluding, by implication, the right to resort to any other mode of executing the power . . . .");
234. Manning, supra note 146, at 1737 ("[W]hen an adopted text establishes a new power and takes care to specify the mode of its exercise, our tradition is to treat such a specification as presumptively exclusive.").
235. Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1244 (1995).
236. See Clark, Separation of Powers, supra note 22, at 1328-67.
237. Cf. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 80 (1938) (concluding that "in applying the [Swift] doctrine this Court and the lower courts have invaded rights which in our opinion are reserved by the Constitution to the several States").
238. Green, supra note 5, at 683.
239. See Dorf, supra note 8.
240. See Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747 (1999).
241. BLACK, supra note 7, at 7.
242. Dorf, supra note 8, at 835.
243. Id. at 838.
244. Amar, supra note 153, at 748.
245. Id. at 791.
246. Id. at 792.
247. Id. at 794-95.
248. Adrian Vermeule & Ernest A. Young, Hercules, Herbert, and Amar: The Trouble with Intratextualism, 113 HARV. L. REV. 730, 731-32 (2000).
249. See Dorf, supra note 8, at 835. Construing legal texts in light of their context is a traditional method of interpretation. Weak intratextualism appears to follow in this tradition.
250. LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 24 (1991).
251. Vermeule & Young, supra note 161, at 765.
252. Id.
253. See Green, supra note 5, at 684.
254. Id.
255. See U.S. CONST. art. I, § 7, cl. 2 (establishing procedures for enacting Laws);
256. U.S. CONST. art. II, § 2, cl. 2 (establishing procedures for making Treaties);
257. U.S. CONST. art. V (establishing procedures for amending the Constitution);
258. id. (providing that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate").
259. Green, supra note 5, at 685.
260. See Dorf, supra note 8, at 835 ("It is, after all, a conventional principle of textual construction that words are to be interpreted in accordance with their context.");
261. see also Tribe, supra note 148, at 1272 ("[Peripheral vision seems essential for coherent structural argument in constitutional law ....").
262. Manning, supra note 146, at 1737;
263. see supra notes 146-148 and accompanying text.
264. Manning, supra note 146, at 1737-38;
265. see also Buckley v. Valeo, 424 U.S. 1, 109-43 (1976).
266. U.S. CONST. art. III, § 2, cl. 1.
267. See Capron v. Van Noorden, 6 U.S. (2 Cranch) 126 (1804).
268. 1 CONVENTION RECORDS, supra note 24, at 155-56 (James Madison, June 7, 1787) (statement of George Mason).
269. Vermeule & Young, supra note 161, at 736 n.33.
270. Green, supra note 5, at 692.
271. Id. at 687.
272. Id. at 688
273. Id.
274. See id. at 689.
275. Id.
276. Id. Green also suggests that, as "a matter of interpretive holism," the decision to give federal judges power to interpret statutes and the Constitution might lead one to doubt that the Constitution somehow resists "the lesser, ill-defined 'danger' of common-lawmaking."
277. Id. at 691. Green has things backwards. Federal common lawmaking necessarily permits more discretion than interpretation because the former, by definition, is not limited to implementing an authoritative text. Contrary to Green's suggestion, the Constitution does not give judges similarly broad discretion to interpret the Constitution. During the ratification debates, Anti-federalists charged that federal judges "will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution."
278. Brutus, Essay No. XI, N.Y. JOURNAL, Jan. 31, 1788, reprinted in 2 THE COMPLETE ANTI- FEDERALIST 417, 420 (Herbert J. Storing ed., 1981). Hamilton responded that courts will not have "arbitrary discretion" because they will have "neither FORCE nor WILL but merely judgment." THE FEDERALIST NO. 78, at 464, 470 (Alexander Hamilton) (Clinton Rossiter ed., 1961). In Hamilton's view, it would be an abuse of power for judges to "substitute their own pleasure to the constitutional intentions of the legislature."
279. Id. at 468. Chief Justice Marshall agreed.
280. See Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824) ("Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law."). For similar reasons, Article III should not be construed to give federal courts free reign when interpreting statutes.
281. See Manning, supra note 20. Green also argues that "a 'Federal Anti-Common Law Act' could eliminate [federal common lawmaking] altogether, if Congress ever chose to enact such an absurdity."
282. Green, supra note 5, at 691. Green finds such a "hypothetical statute" to be "barely imaginable" because "the idea of banning common law from federal courts would have seemed entirely at odds with the Framers' flexible ideas of judging."
283. Id. at 691 n.167. The first Congress, however, appears to have enacted just such a statute-Section 34 of the Judiciary Act of 1789 (sometimes known as the Rules of Decision Act)-to govern civil cases.
284. See Judiciary Act of 1789, ch. 20, § 34, 1 Stat. 73, 92 (current version at 28 U.S.C. § 1652 (2000)) ("The laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply."). In addition, when the question of federal common law crimes came before the Supreme Court, it rejected such a flexible idea of judging as unconstitutional.
285. See United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812).
286. See Green, supra note 5, at 689.
287. Id. (citation omitted).
288. See Clark, Separation of Powers, supra note 22, at 1371.
289. See Green, supra note 5, at 692-95. As an example, Green looks not to my discussion of the Supremacy Clause but to an earlier, unrelated discussion of the Supreme Court's anti-commandeering cases.
290. See id. at 686 (citing Bradford R. Clark, Translating Federalism: A Structural Approach, 66 GEO. WASH. L. REV. 1161 (1998) [hereinafter Clark, Translating Federalism]). Notwithstanding Green's selective account, my observations were closely focused on the text, history, and structure of the Constitution. I began by acknowledging that the Constitution does not contain precise text either authorizing or prohibiting commandeering. I then observed that this circumstance should not be taken to mean that Congress has power to commandeer states because "[b]oth the constitutional structure and the only relevant constitutional text [the Tenth Amendment] suggest just the opposite."
291. Clark, Translating Federalism, supra, at 1189. I specifically noted, moreover, that "[t]hroughout its text, the Constitution presupposes the continued existence of the states."
292. Id. at 1192. After reviewing the relevant history, I concluded that "the Supreme Court interpreted the text of the Commerce Clause and the Necessary and Proper Clause-in light of the Constitution's history and structure-not to authorize federal commandeering of the states."
293. Id. at 1196. Whether one agrees with my conclusions or not, it is simply inaccurate to say that my analysis "articulate [s] a vision of constitutional structure" that, like Black's structural methodology, "transcends preoccupation with constitutional text."
294. Green, supra note 5, at 685.
295. Green, supra note 5, at 692;
296. see also Dorf, supra note 8, at 836.
297. Dorf, supra note 8, at 835.
298. Id. at 836.
299. See BLACK, supra note 7, at 35.
300. Id. at 39.
301. See id. at 39-44.
302. Green, supra note 5, at 692.
303. Professor Dorf has recently written that Black's approach "appears to be too open-ended a methodology," may be "especially susceptible of abuse," and is "vulnerable to being attacked as illegitimate." Dorf, supra note 8, at 838, 840, 843.
304. See also John Harrison, Review of Structure and Relationship in Constitutional Law, 89 VA. L. REV. 1779 (2003) (questioning Black's methodology and some of his conclusions). Green suggests that I attempt "to distance [my] arguments from Black's analysis of operative structure," and that this attempt is inconsistent with my reliance on Black's approach on a previous occasion.
305. Green, supra note 5, at 685 n.133 (citing Clark, Translating Federalism, supra note 187, at 1161). Green reads too much into my prior invocation of Professor Black. The discussion he cites was limited to a single, introductory paragraph quoting Black's work essentially for the proposition that structure should not be overlooked in constitutional interpretation. I did not discuss, let alone endorse, Black's particular use of structure or his particular conclusions. Rather, I proceeded to discuss, in my own terms, the relationship between several features of the constitutional structure and the Supreme Court's recent federalism decisions.
306. See Clark, Translating Federalism, supra note 187, at 1161-97.
307. Arguably, the union could not function without this tool. Cf. OLIVER WENDELL HOLMES, COLLECTED LEGAL PAPERS 295 (1920) ("I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.").
308. Green, supra note 5, at 695.
309. Id.
310. Id.
311. Id. at 696.
312. Id. at 695.
313. Dorf, supra note 8, at 844.
314. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).