Erie and problems of constitutional structure

California Law Review

Volumn 96, Issue 3, 2008, Pages 661-697

  Green, Craig ^a  

^a TEMPLE UNIVERSITY   (United States)

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EID: 47749115757     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (326)

1. See, e.g., Bradford R. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie, 145 U. PA. L. REV. 1459 (1997) [hereinafter Clark, Ascertaining the Laws];
2. Bradford R. Clark, The Constitutional Structure and the Jurisprudence of Justice Scalia, 47 ST. LOUIS U. L.J. 753 (2003);
3. Bradford R. Clark, Constitutional Structure, Judicial Discretion, and the Eighth Amendment, 81 NOTRE DAME L. REV. 1149 (2006) [hereinafter Clark, Structure, Discretion, and the Eighth Amendment] (arguing that judicial discretion to displace state laws regarding punishments is not authorized by the Eighth Amendment and contradicts the Supremacy Clause);
4. Bradford R. Clark, Domesticating Sole Executive Agreements, 93 VA. L. REV. 1573 (2007) [hereinafter Clark, Domesticating] (arguing that the Supremacy Clause does not authorize sole executive agreements to override preexisting laws);
5. Bradford R. Clark, Erie's Constitutional Source, 95 CALIF. L. REV. 1289 (2007) [hereinafter Clark, Erie's Constitutional Source] (arguing that the constitutional basis of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), is the Supremacy Clause because federal common law is not one of the three sources of supreme law);
6. Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245 (1996) [hereinafter Clark, Federal Common Law];
7. Bradford R. Clark, Putting the Safeguards back into the Political Safeguards of Federalism, 80 TEX. L. REV. 327 (2001);
8. Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321 (2001) [hereinafter Clark, Separation of Powers];
9. Bradford R. Clark, The Supremacy Clause as a Constraint on Federal Power, 71 GEO. WASH. L. REV. 91 (2003);
10. Bradford R. Clark, Translating Federalism: A Structural Approach, 66 GEO. WASH. L. REV. 1161 (1998) [hereinafter Clark, Translating Federalism];
11. Bradford R. Clark, Unitary Judicial Review, 72 GEO. WASH. L. REV. 319 (2003) [hereinafter Clark, Unitary Judicial Review] (interpreting Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)).
12. Clark, Federal Common Law, supra note 1, at 1264-72 (arguing that federal common law, even in traditionally recognized enclaves, may be "constitutionally suspect").
13. Craig Green, Repressing Erie's Myth, 96 CALIF. L. REV. 595, 596 (2008).
14. Swift v. Tyson, 41 U.S. 1 (1842).
15. Green, supra note 3 at 619-21.
16. Clark, Erie's Constitutional Source, supra note 1, at 1306-07.
17. Id. at 1302.
18. Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (penumbras);
19. Palko v. Connecticut, 302 U.S. 319, 325 (1937)
20. overruled by Benton v. Maryland, 395 U.S. 784 (1969) (ordered liberty).
21. U.S. CONST, art. VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.").
22. Clark, Erie's Constitutional Source, supra note 1, at 1307 (quoting LNS v. Chadha, 462 U.S. 919, 951 (1983)).
23. Id. at 1308.
24. See, e.g., Robert A. Schapiro, Toward a Theory of Interactive Federalism, 91 IOWA L. REV. 243, 278-317 (2005).
25. See Clark, Erie's Constitutional Source, supra note 1, at 1304-06 ("By requiring the participation and assent of the Senate in all forms of federal lawmaking, the Founders effectively gave the states (through their representatives in the Senate) the ability to veto all attempts to adopt 'the supreme Law of the Land.'").
26. Id. at 1290. A necessary predicate of Clark's analysis is his belief that "Laws of the United States" means federal statutes, not federal common law.
27. See id. at 1303-04.
28. Peter Strauss has presented a strong critique of that conclusion, Peter Strauss, The Perils of Theory, 83 NOTRE DAME L. REV. (forthcoming 2008) (manuscript at 1-2, on file with author), but in order to explore other legal issues, this Essay proceeds as though Clark's textual analysis were correct on this point.
29. Cf. id. at 3 (making similar assumptions for a similar purpose).
30. See Green, supra note 3, at 596-96.
31. See, e.g., 19 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 4505 (2d ed. 1996) (endorsing Erie's constitutional holding, despite its being "remarkably abbreviated" and "puzzling");
32. Green, supra note 3, at 596 at nn.4-5 (collecting sources).
33. Clark has also argued that Swift was not wrongly decided in 1842 as an original matter, but that the Court's holding somehow became unconstitutional as (i) the doctrine spread to different areas of substantive law, and (ii) legal theories changed about common-law adjudication itself. See Clark, Separation of Powers, supra note 1, at 1413-14. This argument seems confused. The fact that Swift-era lawmaking happened on a small or large scale cannot be important under the Supremacy Clause. Indeed, Clark's textual analysis would seem to render any federal common lawmaking unconstitutional.
34. Clark cannot be correct that federal courts "were free to" apply Swift's federal general common law "[s]o long as state courts saw themselves as . . . applying a general body of law reflected in the body of multiple jurisdictions," and that "it was only after states abandoned this approach in favor of state-specific rules that . . . [federal general common law] triggered serious constitutional concerns."
35. Bradford R. Clark, Federal Lawmaking and the Role of Structure in Constitutional Interpretation, 96 CALIF. L. REV. 699, 708 (2008)
36. [hereinafter Clark, Federal Lawmaking] (emphasis added). It would be absurd to think that Swift's constitutional status turned on state judges' understanding of their own work.
37. Finally, Clark has claimed that Swift's original holding was constitutionally valid because it concerned customary international law, which he characterizes as "not federal common law," and which some other scholars view as a permissible "enclave" of federal common law. Clark's notion that federal courts should apply customary international law more freely than federal common law is controversial; but even if he is right that federal judicial decisions concerning customary international law are "not federal common law," that cannot be because customary international law involves "[]restrained judicial lawmaking" under "an identifiable body of rules and customs developed and refined by a variety of nations over hundreds . . . of years." See Clark, Separation of Powers, supra note 1, at 1413 n.576 (internal quotation omitted). Otherwise, federal courts would remain free to apply domestic common-law rules, if the latter offered a long pedigree and sprang from "identifiable" precedent-as some Swift-era decisions certainly did.
38. Clark, Erie s Constitutional Source, supra note 1, at 1306.
39. See id. at 1309-10.
40. Id. at 1308.
41. U.S. CONST, art. VI, cl. 2.
42. As a terminological matter, Clark sometimes refers to "displacing" state law and "binding" state judges, rather than "preempting" state law. In this context, however, all three seem equivalent to each other. See generally James E. Pfander, States as Laboratories for Social Change, 17 TEMP. POL. & CIV. RTS. L. REV. (forthcoming 2008) (describing in detail the process by which state law becomes "binding").
43. See, e.g., Turner v. Treadway, 53 N.Y. (8 Sickels) 650 (1873) (noting New York's rejection of the Swift rule in Coddington v. Bay, 20 Johns. 637 (N.Y. Sup. Ct. 1822), both before and after the Supreme Court's decision concerning federal general common law).
44. See Clark, Federal Common Law, supra note 1, at 1262 n.69;
45. William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 91 HARV. L. REV. 1513, 1575 (1984) (noting that federal general common law, even articulated by the Supreme Court, did not bind state courts).
46. See Clark, Erie's Constitutional Source, supra note 1, at 1305 ("the exclusive means of adopting 'the Supreme Three");
47. see also Clark, Structure, Discretion, and the Eighth Amendment, supra note 1, at 1164-65.
48. Cf. infra Part I.C (questioning whether preemptive federal administrative law coheres with Clark's analysis).
49. See Clark, Domesticating, supra note 1, at 1597-98 (noting that the President may make sole executive agreements, despite their absence from the Supremacy Clause, so long as such agreements do not alter preexisting state law). Clark is not always clear on this point, however.
50. See id. at 1654 ("[U]nilateral presidential authority to make sole executive agreements with the force of federal law would circumvent the Constitution's carefully crafted safeguards and the exclusivity of federal lawmaking procedures.") (emphasis added).
51. Clark's reply has surprisingly adopted this argument, without acknowledging his prior contrary position. See Clark, Federal Lawmaking, supra note 17, at 708. This creates significant problems. For example, the unprecedented idea that the Supremacy Clause concerns more than just "supreme" federal law seems substantially nontextual. Although Clark believes that the Supremacy Clause places procedural limits on the promulgation of supreme federal law, he now claims that the exact same procedural limits apply to non-supreme federal law, just because the Constitution-in Articles I, II, and V-does not explicitly authorize a procedure for enacting "non-supreme law." This position risks rendering the pro-state component of Clark's Supremacy Clause analysis superfluous. The silence of Articles I, II, and V would impose Supreme Three lawmaking procedures on all federal lawmaking, regardless of its status as "supreme" law under Article VI.
52. U.S. CONST, art. I, § 7, cl. 3.
53. See INS v. Chadha, 462 U.S. 919, 956 n.21 (1983) ("Each House has the power to act alone in determining specified internal matters.");
54. see also Todd D. Peterson, Prosecuting Executive Branch Officials for Contempt of Congress, 66 N.Y.U. L. REV. 563, 608-09 (1991) (noting decisions that affirm Congress's criminal contempt power as a necessary incident of Congress's legislative function, even though that power is unsupported by constitutional or common law and was, until 1988, unsupported by statute);
55. cf. 2 U.S.C. § 192 (2000) (codifying Congress's contempt power).
56. See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396 (2003) (holding that the President can make executive agreements with other countries without Congressional approval or Senate ratification);
57. see also Dames & Moore v. Regan, 453 U.S. 654 (upholding a sole executive agreement to resolve the Iranian hostage crisis).
58. But cf. Clark, Domesticating, supra note 1, at 1652-54, 1656 (arguing that Garamendi was wrongly decided and offering an unconventional interpretation of Dames & Moore).
59. See, e.g., Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260, 1264 (2006) (discussing the Office of Information and Regulatory Affairs's central role in regulatory planning, which includes annual review of regulatory plans of all administrative agencies);
60. Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52 ADMIN. L. REV. 1303, 1305 (2000) (recognizing that determinations made by the Office of Legal Counsel concerning proposed executive actions are usually "conclusive and binding within the executive branch");
61. Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 MICH. L. REV. 676, 710-11 (2005) (describing the Office of Legal Counsel's "core work" as rendering legal opinions that are binding within the executive branch).
62. Sometimes Clark implies that Swift's federal general common law "displaced" state law, and that Erie stopped such displacement. This characterization seems inapt, however, because state law cannot of its own force bind federal courts with respect to their federal duty to exercise diversity jurisdiction. Neither Swift nor Erie had anything to do with "displacing" state law in this context, because state law cannot extend to federal courts' choice-of-law rules. An absurd hypothetical may illustrate this point: Imagine a state statute that imposed negligence liability for certain tort actions in state court, but imposed a lower (or higher) standard of liability for similar diversity actions in that state's federal courts. Regardless of whether such substantive differences would help, hurt, or be indifferent to federal plaintiffs, the hypothetical state statute cannot itself govern a federal court. Erie requires federal courts to follow state substantive law, not because some state prefers that result, nor because federal courts lack authority to displace state mandates. The reason lies in the common law of federal choice of law. Cf. Judith Resnik, Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism s Multiple Points of Entry, 115 YALE L.J. 1564, 1622 (2006) ("Erie itself may not be a constitutional decision but rather a rule of self-restraint, making the proposition that federal courts have no power to make common law itself an example of federal common lawmaking."). State law cannot-residually or otherwise-control federal courts' internal operations, any more than it controls the activities of Congress or the President. As should be clear, the choice-of-law rules prescribed by Erie and Swift represent lawmaking of the intra-federal sort because they do not directly regulate any state court, state law, or exercise of state authority.
63. See U.S. CONST, art. III, § 2 (granting "judicial Power");
64. U.S.C. § 1332 (2000) (granting jurisdiction over diversity cases).
65. See Gelpcke v. City of Dubuque, 68 U.S. (1 Wall.) 175, 206-07 (1863) ("We shall never immolate truth, justice, and the law, because a State tribunal has erected the altar and decreed the sacrifice.").
66. When Erie was decided, Congress's Rules of Decision Act read: "[t]he 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." Judiciary Act of 1789, ch. 20, § 34, 1 Stat. 73, 92 (current version at 28 U.S.C. § 1652 (2000)). Swift held that "the laws of the several states" did not include judicial decisions; if that conclusion were wrong, then Erie could have been decided on statutory grounds, not constitutional ones. Green, supra note 3, at 601-02 (noting that Justice Reed endorsed this non-constitutional rationale).
67. Incidentally, Erie's decision to require state substantive law in diversity cases seems to me entirely proper, as a matter of common-law decision-making if nothing else. See Green, supra note 3, at 614 (emphasizing that the Erie doctrine should be retained even though it lacks constitutional support).
68. See supra note 3 3.
69. See Clark, Ascertaining the Laws, supra note 1, at 1461 (arguing that constitutional concerns should bar federal courts in diversity cases from predicting state courts' common-law rulings).
70. See, e.g., CHARLES ALAN WRIGHT & MARY KAY KANE, LAW OF FEDERAL COURTS 355 (6th ed. 2002) ("It is impossible to overstate the importance of the Erie decision.").
71. See Henry J. Friendly, In Praise of 'Erie-And of the New Federal Common Law, 39 N.Y.U. L. REV. 383 (1964);
72. John Hart Ely, The Irrepressible Myth of Erie, 87 HARV. L. REV. 693, 695 (1974);
73. Paul J. Mishkin, Some Further Last Words on Erie-The Thread, 87 HARV. L. REV. 1682 (1974).
74. See Sosa v. Alvarez-Machain, 542 U.S. 692, 729 (2004);
75. Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 504 (2001);
76. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 955 (1992);
77. Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION 3 (Amy Gutmann ed., 1997).
78. See Green, supra note 3, at 596.
79. Id.
80. Clark's reply seems to associate my analysis with overbroad judicial freedom that lacks any constitutional limits. Clark, Federal Lawmaking, supra note 17, at 709 (emphasis original). My position, however, has no effect on justiciability, due process, or other constitutional limits on federal adjudication. Also, there is nothing in my analysis that would encourage federal courts to discard state law in classic Erie cases. In fact, I have proposed a framework for evaluating federal common law that would set aside Erie and the Supremacy Clause as irrelevant, but would respond directly to Clark's concerns about republication government and judicial willfulness.
81. See Green supra note 3, at 665-60. To reject Clark's approach does not imply disrespect for the limited role of federal judges; it just requires a better way to identify such limits than Erie's new myth and analysis of the Supremacy Clause.
82. See Craig Green, An Intellectual History of Judicial Activism (April 2, 2008) (unpublished manuscript, on file with the author);
83. see also Keenan D. Kmiec, Comment, The Origin and Current Meanings of "Judicial Activism," 92 CALIF. L. REV. 1441, 1446 (2004) (noting that the term "judicial activism" was first published in 1947).
84. Consider a few technical questions that might arise if Clark's constitutional argument were true. Would the Supremacy Clause let federal courts decide diversity cases without following a state's system of choice of law? Or would the creation of federal choice-of-law rules be invalid lawmaking? Could federal courts impose equitable remedies different from those in state courts? Could federal courts create a federal common law of preclusion? Could federal courts disregard state rules about the use of juries or appellate review? Which if any of these would violate Clark's view of the Supremacy Clause, even if the resultant law were not directly applicable to, or supremely binding on, state courts? In fact, the Court has answered all of these questions, sometimes requiring federal courts to follow state law, sometimes not. See, e.g., Semtek, 531 U.S. 497 (preclusion);
85. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 432-36 (1996) (appellate review and juries);
86. Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 538-40 (1958) (juries);
87. Guar. Trust Co. v. York, 326 U.S. 99, 105-06 (1945)
88. (citing Sprague v. Ticonic Bank, 307 U.S. 161, 164-65 (1939)) (equitable remedies);
89. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941) (choice of law). In applying Erie, however, these decisions do not invoke deep constitutional principles, and their results do not form a constitutional border beyond which federal lawmaking runs out. On the contrary, each decision-right or wrong-stems from practical concerns about our dual system of adjudication. And I would suggest that, whichever way a federal court were to resolve such issues, the results would not involve any constitutionally invalid species of law.
90. See Green, supra note 3, at 618-22.
91. See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426 (1964) ("[T]here are enclaves of federal judge-made law which bind the States."). By way of background, Article III, Section 2 outlines categories of cases and controversies that lie within federal courts' "judicial Power," including admiralty and diversity jurisdiction, as well as cases where a state is a party. None of these categories is exclusive as a matter of constitutional law, though several are so under longstanding statutory provisions.
92. See Ames v. Kansas, 111 U.S. 449, 463-65, 469 (1884);
93. U.S.C.A. § 1251 (West 2006) & historical and statutory notes. Some grants of jurisdiction, like admiralty and interstate disputes, have been thought to imply a power of judicial lawmaking; others, like diversity, have been construed not to do so; and some have been matters of dispute.
94. See Nw. Airlines v. Transp. Workers Union, 451 U.S. 77, 95-96 (1981);
95. see also Sosa v. Alvarez-Machain, 542 U.S. 692, 742 (2004) (Scalia, J., concurring in part and concurring in the judgment).
96. Compare Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. 518, 563-66 (1851) (applying the "public law of nuisance" to a case involving State-party jurisdiction)
97. with id. at 579-83 (Taney, C.J., dissenting) (denying the legitimacy of such judicial lawmaking).
98. Clark, Federal Common Law, supra note 1, at 1247
99. (quoting PAUL M. BATOR ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 863 (3d ed. 1988)).
100. Clark observes that "[b]y hypothesis, at least, federal common lawmaking begins where interpretation ends." Id. at 1248.
101. Id. at 1248 n.7. As the foregoing text shows, I do not claim that it is "impossible" to define common law.
102. Clark, Federal Lawmaking, supra note 17, at 710, 712. Given longstanding confusion over such definitions, and the term's absence from the Constitution's original text, I am simply unconvinced that the new myth's typologies of "common-law" and "non-common-law" answer any deep questions about republican government or judicial role. Clark's proffered definitions, and his discussion of admiralty and interstate disputes, only heighten these concerns.
103. See Green, supra note 3, at 622 ("[Erie's] new myth's unstable concepts are categorical distractions from more contextual assessments of judicial power.")
104. Clark, Federal Common Law, supra note 1, at 1248 n.7.
105. The functional interpretation of common law described supra would not accept a court's mere citation of a statute or the Constitution, but would instead ask whether the court's results are substantively grounded in such authorities. It seems obvious that Clark would reject a judge's effort to conceal common-lawmaking under a statutory or constitutional mask. Clark also rejects judicial characterizations of decisions as "common law" when he thinks they are "not common law"-as occurs in cases of interstate disputes.
106. Clark, Erie's Constitutional Source, supra note 1, at 1309 n. 141.
107. Clark, Federal Common Law, supra note 1, at 1248 n.7. Clark explains this problem as follows: "In the end, of course, one's conception of the scope of federal common lawmaking depends in large part on one's approach to statutory (and constitutional) interpretation."
108. Id. If this is correct, then jurists will differ on definitions of "common law" so long as they differ on methodologies of statutory and constitutional interpretation.
109. Clark, Federal Common Law, supra note 1, at 1341 er seq.;
110. accord Ernest A. Young, Preemption at Sea, 67 GEO. WASH. L. REV. 273 (1999).
111. Clark, Federal Common Law, supra note 1, at 1254.
112. See id. at 1328 (finding that constitutional structure validates rules applied in interstate disputes).
113. See id. at 1322-31 («conceptualizing federal common law used to decide interstate disputes as "rules of decision necessary to implement and maintain the constitutional equality of the states").
114. For example, Clark relies on the Constitution's requirement of two Senators for each state. Clark, Federal Common Law, supra note 1, at 1328.
115. See Clark, Federal Common Law, supra note 1, at 1254;
116. cf. Jay Tidmarsh & Brian J. Murray, A Theory of Federal Common Law, 100 NW. U. L. REV. 585, 627-644 (2006) (seeking to explain and rationalize the current set of common-law "enclaves").
117. See Clark, Federal Common Law, supra note 1, at 1254, 1271-75 (explaining the convoluted process by which federal common law is "reconceptualized" as rules designed to implement the constitutional structure).
118. See id. at 1331 (noting that rules applied in interstate dispute cases further the constitutional structure);
119. Clark, Separation of Powers, supra note 1, at 1452-53 (recognizing that reconceptualized federal common law used to resolve interstate disputes is based in the Constitution);
120. see also Clark, Federal Common Law, supra note 1, at 1247
121. (quoting PAUL M. BATOR ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 863 (3d ed. 1988)).
122. See Clark, Structure, Discretion, and the Eighth Amendment, supra note 1, at 1193 (explaining that the recent Eighth Amendment cases, Swift v. Tyson, and federal common law crimes raise "many of the same concerns under the constitutional structure");
123. id. at 1198 (arguing that the Eighth Amendment cases are not "logically distinguishable" from other applications of federal common law);
124. see also id. at 1193 (noting that the Supreme Court now "claims the right to set aside traditional state law punishments" without attempting to rely on the text or history of the Constitution).
125. Clark, Federal Lawmaking, supra note 17, at 714-15 n.105. Clark now claims that his Eighth Amendment analysis had no deep link to Swift, Erie, or the Supremacy Clause. Regardless of whether this is revision or clarification, I agree.
126. See id. at 1193 (objecting that the Supreme Court, in exercising policymaking discretion in its Eighth Amendment jurisprudence, has failed to base its discretion in either the text or history of the Constitution);
127. see also id. at 1202 (concluding that the Supreme Court's current approach to Eighth Amendment jurisprudence "represents 'an unconstitutional assumption of powers by courts of the United States'")
128. (quoting Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938) (condemning Swift)).
129. See id. at 1193, 1202 (arguing that the Supreme Court's exercise of its "independent judgment" raises constitutional concerns).
130. See generally Elizabeth F. Emens, Aggravating Youth: Roper v. Simmons and Age Discrimination, 2005 SUP. CT. REV. 51 (2005) (supporting the decision in Roper v. Simmons and arguing that the Eighth Amendment prevents minors from being executed)
131. and Curtis A. Bradley, The Juvenile Death Penalty and International Law, 52 DUKE L.J. 485 (2002) (arguing that international law does not forbid the United States from executing juvenile defendants).
132. Compare Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 HARV. L. REV. 881, 917 (1986) (stating that the Supreme Court has power to create law in admiralty cases and dismiss state law)
133. with Young, supra note 57 (arguing that federal court-created maritime law should not be preemptive).
134. Another example of this point is customary international law, which I have discussed elsewhere. See Green, supra note 3, at 623. Some new-myth scholars have strenuously urged that customary international law should be barred as illegitimate federal common law; Clark asserts the opposite. In my view, the new myth lacks sufficient conceptual clarity to resolve such disagreements.
135. Strauss, supra note 14, at 17-18 ("In numeric terms, at least, the predominant source of federal law today is federal agency rulemaking.");
136. see Ballerina Pen Co. v. Kunzig, 433 F.2d 1204, 1208 (D.C. Cir. 1970) ("[A]s the 'fourth branch of government,' the administrative agencies may well have a more far-reaching effect on the daily lives of all citizens than do the combined actions of the executive, legislative and judicial branches ....");
137. see also STEPHEN G. BREYER ET AL., ADMINISTRATIVE LAW AND REGULATORY POLICY 1 (6th ed. 2006) ("Modern government is administrative government.");
138. William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523, 527 (1992) (noting "[t]he advent of the administrative state, in which much 'lawmaking' is accomplished by agencies dominated by the President");
139. Daniel J. Solove, The Darkest Domain: Deference, Judicial Review, and the Bill of Rights, 84 IOWA L. REV. 941, 959 (1999) ("One of this century's most profound developments in the American social and political structure was the rise of the bureaucratic state.").
140. See, e.g., Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153 (1982).
141. U.S. CONST, art. VI, cl. 2.
142. See Clark, Federal Common Law, supra note 1, at 1287.
143. See Strauss, supra note 14, at 17 (noting that it would be "fictional to suggest that [the Senate] directly participates in . . . administrative rulemaking"). One possible defense of administrative lawmaking is that even significant policymaking should not qualify as legislation because the agency is part of the executive branch. As a formal matter, it is true that any agency action that satisfies non-delegation precedents is called, ipso facto, non-legislative.
144. Compare Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472-75 (2001) (applying this traditional rhetoric), with id. at 488-90 (Stevens, J., concurring in part and concurring in the judgment) ("[I]t would be both wiser and more faithful to what we have actually done in delegation cases to admit that agency rulemaking authority is 'legislative power.'"). If one followed that formalist path with respect to agency action, however, it should also apply to federal judges. Thus, even adjudication that concerns deep issues of policy and sets a quasi-legislative precedent for the future should perhaps qualify as "adjudication," rather than legislation. In any event, the issue at stake is how to constrain lawmaking undertaken by a branch other than Congress. Thus, formal labels suggesting that whatever the executive does is "executing," or that judges by nature "adjudicate," cannot be entirely satisfactory.
145. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
146. Whitman, 531 U.S. at 476. As the Court explained: We have . . . upheld ... the Public Utility Holding Company Act of 1935, which gave the Securities and Exchange Commission authority to modify the structure of holding company systems so as to ensure that they are not "unduly or unnecessarily complicate[d]" and do not "unfairly or inequitably distribute voting power among security holders." We have approved the wartime conferral of agency power to fix the prices of commodities at a level that '"will be generally fair and equitable and will effectuate the [in some respects conflicting] purposes of th[e] Act.'" And we have found an "intelligible principle" in various statutes authorizing regulation in the "public interest." In short, we have "almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law."
147. Id. at 474-75 (citations omitted).
148. See Clark, Separation of Powers, supra note 1, at 1377.
149. Cf. Strauss, supra note 14, at 18 (presenting a forceful critique of Clark's work along similar lines). Clark has now confirmed that his analysis of the Supremacy Clause contradicts a great swath of modern administrative law, yet he suggests that readers should not worry because courts lack competence to enforce the Supremacy Clause vigorously in administrative contexts.
150. Clark, Federal Lawmaking, supra note 17, at 131. This surprising argument has several problems. First, the President and members of Congress also swear oaths to "preserve, protect and defend the Constitution" and to "support" the Constitution.
151. U.S. CONST, art. II, § 1, art. VI, cl. 3. If the administrative state were indeed unconstitutional, that would be an extraordinarily serious flaw in modern American government, regardless of whether courts were (temporarily) coaxed toward the sidelines. Second, on the merits of judicial non-interference, Clark's analysis and authorities assume current non-delegation doctrine, not Clark's view of the Supremacy Clause. Under conventional doctrine, it is indeed difficult to determine when agencies unconstitutionally legislate. By contrast, under Clark's theory of federal common law, the unconstitutionality of much administrative action is unmistakably clear. See infra notes 81-87 and accompanying text. If judges agreed with Clark about the Supremacy Clause, their willingness to invalidate administrative action might increase to levels unprecedented in the post-Lochner era. Third, Clark's analysis yet again reveals (but does not justify) disparities in his treatment of administrative and judicial lawmaking. For example, Clark endorses judicial inaction with respect to the Supremacy Clause and administrative lawmaking-because it is hard to separate legislative action from executive action-yet he endorses vigorous use of the Supremacy Clause against federal courts in patrolling the comparably elusive border between legislation and adjudication.
152. J. W. Hampton, 276 U.S. at 409.
153. Though it is often dangerous to use metaphors, what I mean here by the "vessel" is no more than the legislative creation of administrative jurisdiction, the agency itself, enforcement powers, and the like.
154. Note that this hypothetical, like the real diversity statute, is ambiguous about whether federal courts should make their own substantive law.
155. See Excelsior Underwear Inc., 156 N.L.R.B. 1236 (1966).
156. 29 U.S.C. § 157 (2000).
157. 29 U.S.C. § 160(k) (2000) (authorizing the Board "to hear and determine the dispute out of which such unfair labor practice shall have arisen");
158. 29 U.S.C. § 156 (2000) (authorizing the Board to make rules and regulations).
159. Excelsior, 156 N.L.R.B. at 1239-40.
160. The Supreme Court case of NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969), was made complex only because the Board gave its ruling in
161. Compare 29 U.S.C. § 160 (2000) (authorizing the NLRB to prevent unfair labor practices)
162. with 28 U.S.C. § 1331 (2000) (federal question jurisdiction)
163. and U.S. CONST, art. I, § 8 (federal legislative authority).
164. Although it may be unnecessary, one might also note that the Excelsior rule is ultimately authorized by powers delegated under the Constitution, but that obviously does not make the Board's ruling "constitutional law."
165. See Clark, Separation of Powers, supra note 1, at 1430 (noting that the Supremacy Clause does not address administrative rules).
166. See supra Part I.B (exploring the definition of illegitimate common law).
167. Cf. D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 470 (Jackson, J., concurring) ("Were we bereft of the common law, our federal system would be impotent. This follows from the recognized futility of attempting all-complete statutory codes, and is apparent from the terms of the Constitution itself.");
168. Strauss, supra note 14, at 18 ("Had the Supremacy Clause the meaning Professor Clark argues for, it would be necessary to abandon the delegation doctrine as we know it.... ").
169. Clark, Federal Common Law, supra note 1, at 1248-49 (emphasis added).
170. See U.S. CONST, art. I;
171. U.S. CONST, art. VI, cl. 2.
172. 462 U.S. 919(1983).
173. Id. at 951.
174. One can imagine an argument that at least the agency's actions are "statutory," but that is no less true for courts. See supra note 74 (discussing difficulties in simply applying the label "legislation" to actions performed outside Congress). Both agencies and courts are authorized by Congress to decide cases, but in a significant range of cases, neither entity has much statutory guidance on exactly how to do so.
175. See Chadha, 462 U.S. at 953 n.16.
176. Id. at 951.
177. Id. at 944 (noting that the legislative veto was first applied in 1932);
178. id. at 1003-13 (appendix to White, J., dissenting) (citing 56 statutes containing legislative vetoes).
179. Id. at 923-24 (majority opinion).
180. See Immigration and Nationality Act, Pub. L. No. 82-414, § 244(a)(1), (b), 66 Stat. 163, 214-16 (1952).
181. Id. at § 244(b), (d), 66 Stat, at 216-17.
182. Id. at § 244(b), 66 Stat, at 216.
183. Chadha, 462 U.S. at 924, 926-28.
184. Id. at 954-55.
185. U.S. CONST, art. I, § 7;
186. Chadha, 462 U.S. at 953-54.
187. Chadha, 462 U.S. at 1002 (White, J., dissenting).
188. Id. at 989.
189. Id. at 994.
190. Id. at 927 n.3, 952.
191. Chadha, 462 U.S. at 987 (White, J., dissenting) (citing Currin v. Wallace, 306 U.S. 1 (1939)).
192. Id. (citing United States v. Rock Royal Co-operative, Inc., 307 U.S. 533, 577 (1939)).
193. Id.
194. Id. at 953 n.16 (majority opinion) (citing Humphrey's Executor v. United States, 295 U.S. 602, 628 (1935)).
195. Cf. Clark, Erie's Constitutional Source, supra note 1, at 1290 (noting the Senate's structural link to state sovereignty).
196. The particular result in Chadha operated for the benefit of "executive lawmaking," and that will often be the case. On the other hand, Congress could also choose to place judges or private parties as the veto-holder. See supra notes 110-112 and accompanying text.
197. Indeed, how could it be, when Chadha left deportation decisions in the Attorney General's nonstatutory hands?
198. See Green, supra note 3.
199. Clark has offered an impressive amount of thoughtful and detailed Supremacy Clause scholarship. For example, his idea of the Clause as a "double-edged sword" protecting federal authority (through preemption) and state interests (through the Supreme Three) has drawn warranted attention, and critique, from prominent legal scholars. See Symposium, Separation of Powers as a Safeguard of Federalism, 83 NOTRE DAME L. REV. (forthcoming 2008).
200. See Excelsior Underwear Inc., 156 N.L.R.B. 1236 (1966).
201. Indeed, if one were to compare the historical legitimacy of judicial and agency lawmaking, at least the Framers had experience with judges; modern administrative lawmaking would surely seem bewildering.
202. Clark, Erie s Constitutional Source, supra note 1, at 1290.
203. See 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 (2004) (discussung different meanings of "structure").
204. CHARLES L. BLACK, JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW 48-49 (1969).
205. See, e.g., Dorf, supra note 122, at 835 n.10 (collecting sources).
206. To see the broad range of scholarship that could be characterized as some form of structuralism, compare Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 798 (1999) ("When extended beyond paragraphism to encompass the entire document, holistic textualism has an obvious virtue: it invites readers to ponder connections between noncontiguous clauses that have no textual overlap, yet nevertheless cross-illuminate."),
207. with Bruce Ackerman, The Emergency Constitution, 113 YALE L.J. 1029 (2004) (arguing that nontextual constitutional structures must be used during emergency periods to both protect civil liberties and avoid governmental paralysis).
208. See Dorf, supra note 122, at 835.
209. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 412 (1819).
210. This sensitivity and inferential tendency sometimes spurs criticism of holists as over-interpretive and clever. See Michael Abramowicz, Constitutional Circularity, 49 UCLA L. REV. 1, 81 n.335 (2001) (discussing the risk, which Amar acknowledges and seeks to avoid, that holistic methods such as "intratextualism may lead to readings that are too clever").
211. See Clark, Separation of Powers, supra note 1, at 1331.
212. See BLACK, supra note 123, at 40 (proposing that a state statute should be invalid because it "interfere[s] with a transaction which is a part of the working of the federal government" (emphasis added)).
213. McCulloch, 17 U.S. at 407;
214. cf. supra notes 126-127 and accompanying text (discussing McCulloch's reliance on structural holism).
215. Id.
216. Id.
217. Id.
218. See Clark, Federal Common Law, supra note 1, at 1251, 1270;
219. Clark, Separation of Powers, supra note 1, at 1338;
220. Clark, Translating Federalism, supra note 1, at 1161.
221. Clark's reply seeks to distance his arguments from Black's analysis of operative structure. See Clark, Federal Lawmaking, supra note 17, at.727-29.
222. It was not always so, however. See, e.g., Clark, Translating Federalism, supra note 1, at 1161 (explaining that "it would be 'intellectually satisfying' but 'not true' to say that, for constitutional law, our legal culture 'always purports to move on the basis of the interpretation of particular constitutional texts,'" and that constitutional "interpreters should at least consult [Black's structural] method of interpretation in attempting to answer constitutional questions"
223. (quoting BLACK, supra note 123, at 7-8)). There is not space to engage the merits of Clark's newly heightened commitment to interpretive fundamentalism. Suffice it to say that constitutional interpreters often consider structural arguments when the Constitution's text and context are unclear. Thus, if I agreed with Clark that the Supremacy Clause offered specific, explicit, or precise instructions about federal common law's constitutionality, I would not proffer structural arguments as a trump.
224. See Clark, Translating Federalism, supra note 1, at 1162 (suggesting that, as a general matter, "[f]idelity to the constitutional text . . . must be considered a fundamental judicial duty in a system of separated powers established by a written constitution");
225. id. at 1188 (noting that the Constitution does not address the "precise question" of judicial review).
226. Id. at 1161.
227. Id. at 1187-97.
228. See, e.g., Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992).
229. Printz, 521 U.S. at 905.
230. Clark, Translating Federalism, supra note 1, at 1189.
231. See id. at 1190-91 nn.221-225.
232. BLACK, supra note 123, at 7.
233. Clark, Translating Federalism, supra note 1, at 1196.
234. Dorf, supra note 122, at 843.
235. Id. at 844.
236. Clark, Translating Federalism, supra note 1, at 1162.
237. But cf. id. at 1161 (noting that, with respect to federalism at least, "the constitutional text may provide less than complete guidance");
238. id. at 1177 (arguing that interpretation of the Constitution's text should change to protect federalism when altered circumstances threaten the allocation of power between the federal government and the states).
239. Clark, Erie's Constitutional Source, supra note 1, at 1308 ("[T]he Supremacy Clause provides an express constitutional basis for the Supreme Court's decision in Erie to abandon the Swift doctrine.").
240. See New York v. United States, 505 U.S. 144, 156-57 (1992).
241. Clark, Translating Federalism, supra note 1, at 1192. Among these provisions are the requirement of two Senators from each state, the power of states to select their presidential electors, and state control over who may elect members of the House.
242. See U.S. CONST, art. I, §§ 2, 3;
243. U.S. CONST, art. II, § 1.
244. See U.S. CONST, art. I, § 2, cl. 1;
245. U.S. CONST, art. I, § 3, cl. 1.
246. See Clark, Translating Federalism, supra note 1, at 1168 ("The political safeguards of federalism refer to the states' ability to influence the selection of Congress and the President, and therefore the content of the federal law they adopt.").
247. See 1 JULIUS GOEBEL, JR., HISTORY OF THE SUPREME COURT OF THE UNITED STATES: ANTECEDENTS AND BEGINNINGS TO 1801, at 97 (1971)
248. ("For all the anxieties to make explicit the fundamentals proper to a constitution, the judicial generally came off with little more than an honorable mention because these anxieties were . . . spent upon making less of the executive and more of the legislative branch."); id. at 290
249. ("[T]he bulk of the criticism of the Constitution had to do with matters about which the average voter could be more deeply troubled than . . . courts and litigation - representation, . . . taxation, the militia, the necessary and proper clause, the executive."). See generally id. at 295-97 (noting concerns of George Mason and others that the federal judiciary might not adequately secure to the people "the benefit of the common law").
250. See Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in 4 THE COLLECTED WORKS OF ABRAHAM LINCOLN 421, 434 (Roy P. Basler ed., 1953) ("Much is said about the 'sovereignty' of the States; but the word, even, is not in the national Constitution . . . .").
251. I am grateful to my dean, Bob Reinstein, for helping me appreciate this point. See generally Robert J. Reinstein, On the Judicial Safeguards of Federalism, 17 TEMPLE. POL. CIV. R. L. REV. (forthcoming 2008) (suggesting that changes to the Constitution's text and structure, supplemented by altered realities concerning American democracy and citizenship, undermine judges' role in imposing constitutional limits on federal legislative power). For a parallel critique of Clark using techniques of constitutional dynamism,
252. see Strauss, supra note 14, at 3 ("The meaning of 'our federalism' has changed dramatically in the ensuing twenty-two decades, and Professor Clark's analysis could be thought insufficiently to credit the principal engines of that change.").
253. Clark, Erie's Constitutional Source, supra note 1 at 1305-06.
254. U.S. CONST, amend. XXI.
255. U.S. CONST, amends. XIII, XIV, XV, XVI, XVIII, XIX, XXIV, XXVI.
256. U.S. CONST, amends. XIII, XIV, XV, XVIII, XIX, XXIV, XXVI.
257. U.S. CONST, amends. XVII, XXIII.
258. See generally Clark, Unitary Judicial Review, supra note 1, at 325-331 (collecting historical sources).
259. See Strauss, supra note 14, at 2 ("[T]he founders understood that in creating courts they were creating bodies capable of acting in ways that would impose obligations on parties properly brought before them.");
260. id. ("[T]he grants . . . of original jurisdiction over the states and to federal courts generally of jurisdiction in admiralty (not to mention the practical necessity of federal common law in the Northwest Territory and other territories not yet participating in statehood) foretell judge-made law that will have purchase without the Senate ever having a participatory change."). Note that, although the Anti-Federalists favored states' rights, they also endorsed vague constitutional language in the Bill of Rights.
261. See, e.g., Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1137-38 (1991);
262. Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 HARV. L. REV. 1175, 1188 n.51 (1996).
263. U.S. CONST, art. III, § 2.
264. See, e.g., Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 77 (alien tort statute);
265. id. at § 11, 1 Stat, at 78 (diversity jurisdiction);
266. id. at § 34, 1 Stat, at 92 (rules of decision).
267. U.S. CONST, art. III, § 2.
268. U.S. CONST, art. II, § 2.
269. U.S. CONST, art. Ill, § 1.
270. As a matter of eighteenth-century history, there was apparent disagreement about whether federal courts would apply state law in diversity cases. Cf. Patrick J. Borchers, The Origins of Diversity Jurisdiction, the Rise of Legal Positivism, and a Brave New World for Erie and Klaxon, 72 TEX. L. REV. 79, 97 (1993)
271. (quoting Federalist John Marshall who stated that federal courts would "be governed by the laws of the state where the contract was made"); Henry J. Friendly, The Historic Basis of Diversity Jurisdiction, 41 HARV. L. REV. 483, 490 (1928) (quoting Anti-Federalist James Winthrop who argued at the Virginia ratifying convention that "[federal court] is not bound to try it [a case] according to the local law where the controversies happen; for in that case it may as well be tried in the state court").
272. There is, however, no evidence of any constitutional doubt that federal courts had the power to apply federal common law where appropriate. Borchers, supra, at 97-98.
273. The text's hypothetical statute is barely imaginable for at least three reasons. First, the idea of banning common law from federal courts would have seemed entirely at odds with the Framers' flexible ideas of judging. Second, as has been discussed, the category of "common law" would seem immensely hard to reduce to statutory text. And third, common law's indistinctness and harmlessness makes it difficult to imagine any reason that Congress would choose to oppose this entire category of judicial action.
274. See Richard H. Fallon, Jr., The Ideologies of Federal Courts Law, 74 VA. L. REV. 1141, 1224-25 (1988).
275. Fallon contrasts a "Federalist Model" that resists nationalization and federal interference in state functions with a "Nationalist Model" that encourages the federal judiciary to ensure national supremacy. Id. at 1151-64.
276. "A large number of judicial opinions reflect the rhetorical excesses of the Federalist and Nationalist models. It is the law's embrace of incompatible Federalist and Nationalist rhetoric, more even than its pattern of results, that supports the charge that federal courts laws is internally contradictory and therefore inherently unstable." Id. at 1226-27.
277. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406 (1819) ("[T]here is no phrase in the [Constitution] which, like the articles of confederation, excludes incidental or implied powers; and which requires that every thing granted shall be expressly and minutely described.").
278. See, e.g., supra Part I.C. (describing lawmaking functions of administrative agencies).
279. BLACK, supra note 123, at 5.
280. See id. at 23-28, 50-66.
281. Cf. McCulloch, 17 U.S. at 407 (citing Congress's power to collect taxes, to borrow money, to regulate commerce, to declare war, and to support armies and navies);
282. id. at 413 (discussing the Necessary and Proper Clause);
283. David P. Currie, The Constitution in the Supreme Court: State and Congressional Powers, 1801-1835, 49 U. CHI. L. REV. 887, 930-38 (1982) (discussing McCulloch's possible source in these provisions of Article I).
284. Indirect evidence of such an argument appears throughout the Court's opinion. See McCulloch, 17 U.S. at 408 ("The exigencies of the nation may require that the treasure raised in the north should be transported to the south . . . . Can we adopt that construction, (unless the words imperiously require it), which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise by withholding a choice of means?");
285. id. at 415 ("The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, as far as human prudence could insure, their beneficial execution." (emphasis added));
286. id. at 417-18 ("The baneful influence of this narrow construction on all the operations of the government, and the absolute impracticability of maintaining it without rendering the government incompetent to its great objects, might be illustrated by numerous examples drawn from the constitution, and from our laws." (emphasis added));
287. id. at 404-05 ("The government of the Union . . . is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.");
288. id. at 415 (noting that federal powers are provided "in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs");
289. id. ("It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for [via judicial interpretation] as they occur.").
290. This analysis of McCulloch parallels Black's argument that free speech, and the rights of petition and assembly, could be derived from constitutional "structure" even if the First Amendment had never been ratified. The basis for that conclusion is that such "rights [are] founded on the very nature of a national government running on public opinion." BLACK, supra note 123, at 41;
291. see also id. at 42 ("Is it conceivable that a state, entirely aside from the Fourteenth or for that matter the First Amendment, could permissibly forbid public discussion of the merits of candidates for Congress, or of issues which have been raised in the congressional campaign . . .?");
292. id. at 44 ("[I]f you admit the validity of this form of inference at all, then I cannot see any ground for hesitation in going along with it a good way.").
293. For other examples, see id. at 8-11
294. (defending the result in Carrington v. Rash, 380 U.S. 89 (1965), on structural grounds rather than on the Equal Protection Clause),
295. and id. at 15-17
296. (defending the result in Crandall v. Nevada, 6 73 U.S. (6 Wall.) 35 (1867), on structural grounds rather than on dormant commerce grounds).
297. See Dorf, supra note 122, at 843 n.52;
298. see also Akhil Reed Amar, Architexture, 77 IND. L.J. 671, 699 n.104 (2002).
299. BLACK, supra note 123, at 29.
300. Id. at 31.
301. Id.
302. Id. at 30 (emphasis added);
303. see also id. at 29 ("The precision of textual explication is nothing but specious in the areas that matter.").
304. See, e.g., U.S. CONST, art. I, § 8;
305. U.S. CONST, art. II, § 2;
306. U.S. CONST, amends. I, V, XIV.
307. See BLACK, supra note 123, at 22 ("I think well of it, above all, because to succeed it has to make sense-current, practical sense."). Of course, one might fairly question the degree to which structural arguments must make "current, practical" sense as opposed to original, historical sense. The former assumes that a constitution must be construed not only in a way that adequately functioned in the past, but functions adequately at present, and will continue to do so in the future. Although this modernist view surely has some appeal, its most extreme extension might make all constitutional amendments unnecessary. Thus, if any principle or rule were necessary to the Constitution's functioning, one might argue that it already exists in the "structure" of the Constitution.
308. Cf. VOLTAIRE, CANDIDE OR OPTIMISM 2 (Burton Raffel trans., Yale Univ. Press 2005) (1759) ("[I]n this best of all possible worlds . . . . everything is for the best."). In my view, this would risk taking Black's functionalism and McCulloch too far.
309. BLACK, supra note 123, at 22-23.
310. Id. at 22.
311. Clark, Erie's Constitutional Source, supra note 1, at 1302.
312. In earlier articles, Clark himself has endorsed Black's style of structuralism. See, e.g., Clark, Federal Common Law, supra note 1, at 1251, 1270;
313. Clark, Separation of Powers, supra note 1, at 1338;
314. Clark, Translating Federalism, supra note 1, at 1161.
315. See, e.g., H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 VA. L. REV. 633 (1993).
316. See, e.g., Clark, Unitary Judicial Review, supra note 1, at 337-47 (discussing the debate over the necessity of the Bill of Rights).
317. U.S. CONST, amend. XIV;
318. see also AKHIL REED AMAR, THE BILL OF RIGHTS (1998).
319. BLACK, supra note 123, at 25.
320. Id.
321. See, e.g., OWEN FISS, THE LAW AS IT COULD BE (2003);
322. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976).
323. John Harrison, Review of Structure and Relationship in Constitutional Law, 89 VA. L. REV. 1779 (2003).
324. Harrison also quotes a fiercer view from the opposite perspective: "Professor Gilmore . . . espouses a more radical position, one that I hate a lot, and that I do not hate less just because it is almost certainly true." Id.
325. (quoting Arthur Allen Leff, Law and, 87 YALE L.J. 989, 1010 (1978)).
326. Clark might reject this intended compliment, as his reply suggests that he only meant to endorse "weak intratextualism." Clark, Federal Lawmaking, supra note 17, at 722-29. Even if this is so, I remain impressed by the methodological nuance that seemed to appear in Clark's earlier work.