Multiplicity in federalism and the separation of powers

Yale Law Journal

Volumn 120, Issue 5, 2011, Pages 1084-1129

  Chafetz, Josh ^a  

^a MIT Sloan School of Management   (United States)

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EID: 79952121244     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (361)

1. United States v. Lopez, 514 U.S. 549, 575 (1995) (Kennedy, J., concurring) (emphasis added).
2. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM 220 (2010).
3. LaCroix's title is, of course, a nod to BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (1967).
4. with which LaCroix shares a number of methodological commitments. For a more detailed placement of LaCroix's approach in the historiographical literature, see Daniel W. Hamilton, Hiding in Plain Sight: A Review of The Ideological Origins of American Federalism by Alison L. LaCroix, U. CHI. L. SCH. FAC. BLOG (May 19, 2010, 8:51 PM), http://uchicagolaw.typepad.com/faculty/2010/05/hiding-in-plain-sight-a-review-of-the-ideological-origins-of-american-federalism-by-alison-l-lacroix.html.
5. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 6.
6. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 6.
7. On the concept that there was a transatlantic imperial constitution, see generally MARY SARAH BILDER, THE TRANSATLANTIC CONSTITUTION: COLONIAL LEGAL CULTURE AND THE EMPIRE (2004).
8. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 14.
9. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 13-15.
10. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 33.
11. See ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 40-41.
12. See ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 32-34.
13. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 35.
14. See ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 37-126.
15. See ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 68-104.
16. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 60.
17. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 64.
18. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 127.
19. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 128.
20. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 128.
21. See ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 132-33.
22. See ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 135-58.
23. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 153.
24. see also MARY SARAH BILDER, THE TRANSATLANTIC CONSTITUTION: COLONIAL LEGAL CULTURE AND THE EMPIRE (2004), at 191-92 (describing Madison's arguments in favor of the congressional negative).
25. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 152-53.
26. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 147.
27. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 21 (Max Farrand ed., rev. ed. 1966) [hereinafter FARRAND'S RECORDS].
28. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 164.
29. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 165.
30. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 167.
31. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 168.
32. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 27.
33. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 28.
34. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 168.
35. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 28.
36. See 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 245 (New Jersey Plan).
37. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 28-29 (Convention adopting the New Jersey Plan's supremacy clause).
38. Interestingly, this version of the Clause provided that federal law and treaties made pursuant to the Constitution would be supreme, "any thing in the respective laws of the individual States to the contrary notwithstanding." 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 29.
39. That is to say, originally, it did not allow federal legislation to preempt state constitutions. The subsequent alteration in wording made federal law supreme "any thing in the Constitutions or laws of the several States, to the contrary notwithstanding." 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 389.
40. This alteration was approved unanimously, 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 389.
41. and Luther Martin was present at the Convention that day. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 387 (Martin speaking on a different issue).
42. 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 589 (Martin's attendance record). Nevertheless, during the ratification debates, Martin would insist that, so altered, the Clause is now worse than useless, for being so altered as to render the treaties and laws made under the federal government superior to our [state] constitution, if the system is adopted it will amount to a total and unconditional surrender to that government, by the citizens of this state, of every right and privilege secured to them by our constitution.
43. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 287.
44. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 389.
45. See 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.").
46. Recall that, even before the Supremacy Clause was adopted by the Convention, Gouverneur Morris thought that the judiciary could "set aside" state laws. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 28.
47. See ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 142.
48. see also Arthur Meier Schlesinger, Colonial Appeals to the Privy Council. I, 28 POL. SCI. Q. 279 (1913) (describing the Privy Council's proto-judicial review power).
49. Arthur Meier Schlesinger, Colonial Appeals to the Privy Council. II, 28 POL. SCI. Q. 433 (1913) (same).
50. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 164.
51. see also ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 168 ("Taken together, the Supremacy Clause and Article III communicated that American federalism would emanate from a national judicial power....").
52. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 169 (stating that the "principal institution responsible for this mediation ['among multiple bases of authority'] was to be the judiciary").
53. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 158.
54. This interpretation is not unique to LaCroix. See, e.g., Jack N. Rakove, The Origins of Judicial Review: A Plea for New Contexts, 49 STAN. L. REV. 1031, 1047 (1997) ("From this point on, it was evident that the task of maintaining both the superiority of national law and the boundaries of federalism would fall to state and federal judiciaries, the residual claimants of this great responsibility once the rival alternatives of the negative and coercion were discredited.").
55. THE FEDERALIST NO. 28, at 181 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
56. It should be noted that Hamilton was not alone in voicing this sentiment. Madison, for instance, wrote: If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due.... THE FEDERALIST NO. 28 (Alexander Hamilton) (Clinton Rossiter ed., 1961), at 295 (James Madison).
57. And James Wilson thought that: A private citizen of a State is indifferent whether power be exercised by the Genl. or State Legislatures, provided it be exercised most for his happiness. His representative has an interest in its being exercised by the body to which he belongs. He will therefore view the National Legisl: with the eye of a jealous rival. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, (Max Farrand ed., rev. ed. 1966), at 344.
58. See Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1449 (1987) ("What America needed, then, was some... model that balanced centripetal and centrifugal political forces-a harmonious Newtonian solar system in which individual states were preserved as distinct spheres, each with its own mass and pull, maintained in their proper orbit by the gravitational force of a common central body.").
59. THE FEDERALIST NO. 28, (Clinton Rossiter ed., 1961), at 181 (Alexander Hamilton). Hamilton elsewhere elaborated: [T]he State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.
60. THE FEDERALIST NO. 26, (Clinton Rossiter ed., 1961), at 172 (Alexander Hamilton).
61. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954).
62. THE FEDERALIST NO. 58, (Clinton Rossiter ed., 1961), at 357 (James Madison).
63. U.S. CONST. art. I, § 3, cl. 1.
64. U.S. CONST. art. I, § 3, cl. 1.
65. See Josh Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 DUKE L.J. 177, 213-14 (2008) (discussing the practice of instruction).
66. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. (1954)., at 548-52.
67. See U.S. CONST. art. II, § 1, cl. 2.
68. See U.S. CONST. art. II, § 1, cl. 3 (requiring a majority of electors for victory in the electoral college).
69. U.S. CONST. art. II, § 1, cl. 3. (emphasis added).
70. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 565 n.9 (1985) (Powell, J., dissenting) ("[T]he view that the structure of the Federal Government sufficed to protect the States... [is] predicated... on assumptions that simply do not accord with current reality.").
71. John O. McGinnis & Ilya Somin, Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System, 99 NW. U. L. REV. 89, 103 (2004) ("[O]ur analysis undermines the argument that the political process will prove an effective substitute for judicial review.").
72. John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311, 1313 (1997) ("Although there is a great deal of historical support for the idea that the national government itself would protect state interests, there is no evidence that the Framers understood the political process to be the exclusive safeguard of federalism.").
73. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 164.
74. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 135.
75. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 21 (Max Farrand ed., rev. ed. 1966), at 165.
76. quoted in ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 150.
77. THE FEDERALIST NO. 51, (Clinton Rossiter ed., 1961), at 323 (James Madison).
78. See 24. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 21 (Max Farrand ed., rev. ed. 1966).
79. See Jonathan Remy Nash, Null Preemption, 85 NOTRE DAME L. REV. 1015, 1040 (2010) ("Preemption of state law by federal law is justified by the Supremacy Clause.").
80. U.S. CONST. art. IV, § 1.
81. Stephen E. Sachs, Full Faith and Credit in the Early Congress, 95 VA. L. REV. 1201, 1206 (2009) (footnote omitted).
82. U.S. CONST. art. IV, § 4.
83. See Luther v. Borden, 48 U.S. 1 (1849) (holding the Republican Guaranty Clause nonjusticiable).
84. DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: DESCENT INTO THE MAELSTROM, 1829-1861, at 75 (2005) ("[T]he provision need not be read as self-executing. It gives no one a right to republican government; it imposes an obligation on the United States. Article I gives Congress authority to pass legislation necessary and proper to carry out the Government's powers and duties; the most obvious way for the United States to guarantee states republican government is by congressional legislation."). Even in the absence of legislation, each house of Congress can enforce the Guaranty Clause by refusing to seat representatives of nonrepublican states.
85. See JOSH CHAFETZ, DEMOCRACY'S PRIVILEGED FEW: LEGISLATIVE PRIVILEGE AND DEMOCRATIC NORMS IN THE BRITISH AND AMERICAN CONSTITUTIONS 168, 183, 188 (2007).
86. As Akhil Amar has persuasively noted, the 1787 Constitution deals significantly more with issues of national security and geostrategy than is commonly realized. See AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 44-51 (2005).
87. And while much of the concern centered around foreign invasions, the Founders were also deeply worried about "envy and jealousy" arising among the states. THE FEDERALIST NO. 5, (Clinton Rossiter ed., 1961), at 51 (John Jay).
88. see also THE FEDERALIST NO. 8, (Clinton Rossiter ed., 1961), at 66 (Alexander Hamilton) (worrying about "[w]ar between the States").
89. U.S. CONST. art. I, § 8, cl. 11.
90. U.S. CONST. art. I, § 8, cl. 12.
91. U.S. CONST. art. I, § 8, cl. 13.
92. U.S. CONST. art. I, § 8, cl. 15.
93. U.S. CONST. art. I, § 8, cl. 16.
94. U.S. CONST. art. II, § 2, cl. 1.
95. The extent of military power granted to the federal government in the Constitution was, of course, influenced by the fear recently generated by Shays's Rebellion. See FORREST MCDONALD, E PLURIBUS UNUM: THE FORMATION OF THE AMERICAN REPUBLIC, 1776-1790, at 145-54 (1965) (describing Shays's Rebellion and the public reaction thereto).
96. GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789-1815, at 111 (2009) ("As Washington declared in response to Shays's Rebellion... 'influence is no government.' Force may have been uncertain in its results and distasteful for good republicans to use, but for most Federalists the possession of military power was essential to the existence of the government." (footnote omitted)).
97. Moreover, one of the first significant exercises of the new power came in response to the Whiskey Rebellion of 1794, which Gordon Wood has called "the most serious domestic crisis the Washington administration had to face." GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789-1815, (2009), at 134.
98. See generally GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789-1815, (2009), at 134-38 (describing the Rebellion and its suppression). The maintenance of national unity was thus central to early thinking about the federal military power.
99. THE FEDERALIST NO. 46, (Clinton Rossiter ed., 1961), at 299 (James Madison).
100. General Lee formally surrendered to General Grant in the living room of Wilmer McLean's house in the village of Appomattox Court House. See HARRY HANSEN, THE CIVIL WAR: A HISTORY 633-34 (Signet Classic 2002) (1961).
101. It is perhaps indicative of the legal profession's obsession with courts that so many legal scholars have mistakenly placed the surrender in an actual courthouse. See, e.g., Taunya Lovell Banks, Exploring White Resistance to Racial Reconciliation in the United States, 55 RUTGERS L. REV. 903, 929 n.117 (2003) (referring to "General Lee's surrender at the Appomattox Courthouse").
102. Daniel A. Farber, Disarmed by Time: The Second Amendment and the Failure of Originalism, 76 CHI.-KENT L. REV. 167, 190 (2000) (citing "the decisive ruling on this point at the Appomattox courthouse in the case of Grant v. Lee").
103. Nikiforos Mathews, Beyond Interrogations: An Analysis of the Protection Under the Military Commissions Act of 2006 of Technical Classified Sources, Methods and Activities Employed in the Global War on Terror, 192 MIL. L. REV. 81, 82 n.3 (2007) (referring to "General Robert E. Lee's surrender at the Appomattox courthouse on 9 April 1865").
104. John O. McGinnis, Remarks on the Installation of Mark Movsesian as Max Schmertz Distinguished Professor of Law, 35 HOFSTRA L. REV. 31, 33 (2006) (referring to "the most famous case of Lee v. Grant-decided finally at the Appomattox Courthouse without possibility of further appeal").
105. Shira A. Scheindlin & Matthew L. Schwartz, With All Due Deference: Judicial Responsibility in a Time of Crisis, 32 HOFSTRA L. REV. 1605, 1614 (2004) (referring to Lee's surrender "at the Appomattox Courthouse").
106. Four years later, the Supreme Court did get around to declaring secession unconstitutional. See Texas v. White, 74 U.S. 700, 724-26 (1869).
107. By then, it need hardly be said, the matter was settled. Cf. Cynthia Nicoletti, The American Civil War as a Trial by Battle, 28 LAW & HIST. REV. 71 (2010) (arguing that the Civil War operated, in a manner akin to medieval trial by battle, to settle the legal question of the constitutionality of secession).
108. U.S. CONST. art. I, § 10, cl. 3.
109. U.S. CONST. art. I, § 8, cl. 7.
110. See John Lauritz Larson, "Bind the Republic Together": The National Union and the Struggle for a System of Internal Improvements, 74 J. AM. HIST. 363, 369 (1987) (noting the use of the postal power for patronage purposes in the early Republic).
111. see also GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789-1815, (2009), at 107-09, 478-85 (noting the ways in which post offices, post roads, and other internal improvements constituted a core element of the Federalist project of promoting national unity).
112. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 221.
113. see also ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 169 ("The defeat of the negative and the adoption of the Supremacy Clause heralded the arrival of an explicitly judiciary-based approach to the problem of multiple authorities.").
114. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 173 ("[T]he combined efforts of the delegates at Philadelphia produced a judicial mode of organizing federalism....").
115. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 178.
116. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 180.
117. See, e.g., CHRISTOPHER L. TOMLINS, LAW, LABOR, AND IDEOLOGY IN THE EARLY AMERICAN REPUBLIC 21-34 (1993).
118. GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789-1815, (2009), at 407, 425.
119. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 179.
120. See ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 184-213.
121. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 180-81.
122. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 182-83.
123. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 184.
124. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 185.
125. See ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 188-201.
126. See ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 176 ("As Kathryn Turner Preyer observed, '[A]wareness of the Act seems to have been kept alive chiefly because it must be summoned to serve as the cause of its own repeal in March 1802.'") (alteration in original).
127. See, e.g., Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 HASTINGS L.J. 579, 602 (1993) ("Seeking to secure their power in the overwhelmingly Federalist judicial branch, the lame duck Federalist Congress enacted the Judiciary Act of 1801 and several pieces of related legislation. These acts were intensely partisan, creating posts designed to be filled hurriedly by the outgoing Federalist administration." (internal footnote omitted)).
128. Jack N. Rakove, The Original Justifications for Judicial Independence, 95 GEO. L.J. 1061, 1072 (2007) ("The simplest explanation of the Judiciary Act of 1801-enacted by a lame-duck Congress and hastily signed and executed by a lame-duck president-is that it sought to secure a defeated party's domination of one branch of government through the mechanism of life tenure.").
129. Linda Przybyszewski, Three Tribes, 11 GREEN BAG 2D 537, 539-40 (2008) (book review) ("Marbury's commission was one of many made under the Judiciary Act of 1801 [sic] by Adams who wanted to fill up the judicial benches and administration with his Federalist Party's cronies.").
130. Judiciary Act of 1801, ch. 4, § 21, 2 Stat. 89, 96-97.
131. Judiciary Act of 1801, ch. 4, § 6, 2 Stat. at 90.
132. Judiciary Act of 1801, ch. 4, § 7, 2 Stat. at 90-91. It was the repeal of this provision a year later, Repeal Act, ch. 8, § 1.
133. 2 Stat. 132, 132 (1802), that came before the Court in Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803).Plaintiff's counsel argued that the elimination of an Article III judgeship was unconstitutional.
134. See Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803), at 303-04 (argument of Charles Lee).
135. Justice Paterson's opinion for the Court completely ignored this argument, see Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803), at 308-09, thereby implicitly upholding the constitutionality of the 1802 Act. Stuart v. Laird is usually read in pari materia
136. with Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), as part of the battle between the Federalist-dominated courts and the newly Republican-dominated political branches.
137. See, e.g., PAUL BREST ET AL., PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND MATERIALS 97-124 (5th ed. 2006) (discussing Marbury and Stuart together).
138. Judiciary Act of 1801 § 11, 2 Stat. at 92.
139. See ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 208-10.
140. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 203.
141. See Alexander Hamilton, Report of the Secretary of the Treasury (Dec. 14, 1790), in 4 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA: 4 MARCH 1789-3 MARCH 1791, at 174, 174 (Charlene Bangs Bickford & Helen E. Veit eds., 1986) [hereinafter DHFFC].
142. For an account situating the Bank within Hamilton's broader economic and political philosophy, see GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789-1815, (2009), at 95-110.
143. See also GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789-1815, (2009), at 103 ("[T]here is no doubt that Hamilton and his [economic] program laid the basis for the supremacy of the national government over the states.").
144. Congress: House of Representatives, Wednesday, Feb. 2: The Bank Bill Under Consideration, GAZETTE OF THE U.S., Feb. 23, 1791, at 1.
145. reprinted in 14 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA: 4 MARCH 1789-3 MARCH 1791, at 369.
146. 14 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA: 4 MARCH 1789-3 MARCH 1791, at 371.
147. Philadelphia, Feb. 5, House of Representatives of the United States: Wednesday, February 2, 1791. GEN. ADVERTISER (Phila.), Feb. 5, 1791, at 3.
148. reprinted in 14 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA: 4 MARCH 1789-3 MARCH 1791, at 377.
149. 14 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA: 4 MARCH 1789-3 MARCH 1791, at 406.
150. 14 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA: 4 MARCH 1789-3 MARCH 1791, at 475.
151. See 14 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA: 4 MARCH 1789-3 MARCH 1791, at 392-97 (Ames).
152. 14 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA: 4 MARCH 1789-3 MARCH 1791, at 452-62 (Gerry).
153. The bill's timeline is laid out at 4, 14 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA: 4 MARCH 1789-3 MARCH 1791, at 171-73.
154. U.S. CONST. art. II, § 2, cl. 1.
155. Edmund Randolph, The Constitutionality of the Bank Bill (Feb. 12, 1791), in THE CONSTITUTION AND THE ATTORNEYS GENERAL 3 (H. Jefferson Powell ed., 1999).
156. See Edmund Randolph, The Constitutionality of the Bank Bill (Feb. 12, 1791), in THE CONSTITUTION AND THE ATTORNEYS GENERAL 3 (H. Jefferson Powell ed., 1999), at 4.
157. Edmund Randolph, The Constitutionality of the Bank Bill (Feb. 12, 1791), in THE CONSTITUTION AND THE ATTORNEYS GENERAL 3 (H. Jefferson Powell ed., 1999), at 7.
158. THOMAS JEFFERSON, Opinion on the Constitutionality of the Bill for Establishing a National Bank (Feb. 15, 1791), in 19 THE PAPERS OF THOMAS JEFFERSON 275 (Julian P. Boyd ed., 1974) [hereinafter JEFFERSON PAPERS].
159. THOMAS JEFFERSON, Opinion on the Constitutionality of the Bill for Establishing a National Bank (Feb. 15, 1791), in 19 THE PAPERS OF THOMAS JEFFERSON 275 (Julian P. Boyd ed., 1974), at 276.
160. THOMAS JEFFERSON, Opinion on the Constitutionality of the Bill for Establishing a National Bank (Feb. 15, 1791), in 19 THE PAPERS OF THOMAS JEFFERSON 275 (Julian P. Boyd ed., 1974), at 280.
161. THOMAS JEFFERSON, Opinion on the Constitutionality of the Bill for Establishing a National Bank (Feb. 15, 1791), in 19 THE PAPERS OF THOMAS JEFFERSON 275 (Julian P. Boyd ed., 1974), at 279-80.
162. ALEXANDER HAMILTON, Final Version of an Opinion on the Constitutionality of an Act To Establish a Bank (Feb. 23, 1791), in 8 THE PAPERS OF ALEXANDER HAMILTON 97 (Harold C. Syrett ed., 1965).
163. ALEXANDER HAMILTON, Final Version of an Opinion on the Constitutionality of an Act To Establish a Bank (Feb. 23, 1791), in 8 THE PAPERS OF ALEXANDER HAMILTON (Harold C. Syrett ed., 1965), at 98.
164. ALEXANDER HAMILTON, Final Version of an Opinion on the Constitutionality of an Act To Establish a Bank (Feb. 23, 1791), in 8 THE PAPERS OF ALEXANDER HAMILTON (Harold C. Syrett ed., 1965), at 98-99.
165. ALEXANDER HAMILTON, Final Version of an Opinion on the Constitutionality of an Act To Establish a Bank (Feb. 23, 1791), in 8 THE PAPERS OF ALEXANDER HAMILTON (Harold C. Syrett ed., 1965), at 99.
166. ALEXANDER HAMILTON, Final Version of an Opinion on the Constitutionality of an Act To Establish a Bank (Feb. 23, 1791), in 8 THE PAPERS OF ALEXANDER HAMILTON (Harold C. Syrett ed., 1965), at 105.
167. ALEXANDER HAMILTON, Final Version of an Opinion on the Constitutionality of an Act To Establish a Bank (Feb. 23, 1791), in 8 THE PAPERS OF ALEXANDER HAMILTON 97 (Harold C. Syrett ed., 1965), 107.
168. See 4 Alexander Hamilton, Report of the Secretary of the Treasury (Dec. 14, 1790), in 4 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA: 4 MARCH 1789-3 MARCH 1791, at 173.
169. The First Bank of the United States's charter expired in 1811, and Congress refused to renew it. See BRAY HAMMOND, BANKS AND POLITICS IN AMERICA FROM THE REVOLUTION TO THE CIVIL WAR 209-26 (1957). Intervening experience, including the economic turmoil caused by the War of 1812, was not pleasant, and Congress in 1815 passed a bill chartering a new bank. After vetoing the bill once, President Madison signed it in 1816, creating the Second Bank of the United States.
170. See BRAY HAMMOND, BANKS AND POLITICS IN AMERICA FROM THE REVOLUTION TO THE CIVIL WAR 209-26 (1957), at 227-46. The First and Second Banks were organized along nearly identical principles.
171. See BRAY HAMMOND, BANKS AND POLITICS IN AMERICA FROM THE REVOLUTION TO THE CIVIL WAR 209-26 (1957), at 243-44.
172. Therefore, although McCulloch v. Maryland dealt with the Second Bank, the constitutional issues it addresses are identical to those raised in the political branches during the debate over the First Bank. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
173. McCulloch, 17 U.S. 316.
174. McCulloch, 17 U.S., at 363.
175. See McCulloch, 17 U.S., at 372-77.
176. McCulloch, 17 U.S., at 403.
177. McCulloch, 17 U.S., at 405.
178. McCulloch, 17 U.S., at 407.
179. McCulloch, 17 U.S., at 408.
180. McCulloch, 17 U.S., at 421.
181. McCulloch, 17 U.S., at 424.
182. See ARTICLES OF CONFEDERATION of 1781, art. II ("Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.").
183. See Josh Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 DUKE L.J. 177, 213-14 (2008), at 204 n.182 (discussing the structure of the Continental Congress under the Articles of Confederation).
184. Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1449 (1987), at 1453.
185. ALEXANDER HAMILTON, Final Version of an Opinion on the Constitutionality of an Act To Establish a Bank (Feb. 23, 1791), in 8 THE PAPERS OF ALEXANDER HAMILTON 97 (Harold C. Syrett ed., 1965), at 105.
186. McCulloch, 17 U.S. at 429.
187. See McCulloch, 17 U.S, at 400, 402 (twice), 404 (seven times), 409 (four times), 410 (six times), 411 (twice), 418 (three times), 427 (twice), 429 (five times), 430, 433.
188. The author was probably Judge William Brockenbrough. Gerald Gunther, Introduction to JOHN MARSHALL'S DEFENSE OF MCCULLOCH V. MARYLAND 1, 1 (Gerald Gunther ed., 1969) [hereinafter DEFENSE].
189. On the uncertainty surrounding this identification, see generally Eric Tscheschlok, Mistaken Identity: Spencer Roane and the "Amphictyon" Letters of 1819, 106 VA. MAG. HIST. & BIOGRAPHY 201 (1998).
190. Amphictyon, Letter to the Editor, Essay I, RICHMOND ENQUIRER, Mar. 30, 1819, at 3.
191. reprinted in DEFENSE, Introduction to JOHN MARSHALL'S DEFENSE OF MCCULLOCH V. MARYLAND 1, 1 (Gerald Gunther ed., 1969), at 52, 55.
192. Hampden [Spencer Roane], Letter to the Editor, Essay IV, RICHMOND ENQUIRER, June 22, 1819, at 3.
193. reprinted in DEFENSE, Introduction to JOHN MARSHALL'S DEFENSE OF MCCULLOCH V. MARYLAND 1, 1 (Gerald Gunther ed., 1969), at 138, 150.
194. A Friend of the Constitution [John Marshall], Letter to the Editor, Essay VII, ALEXANDRIA GAZETTE & DAILY ADVERTISER, July 9, 1819, at 2.
195. reprinted in DEFENSE, Introduction to JOHN MARSHALL'S DEFENSE OF MCCULLOCH V. MARYLAND 1, 1 (Gerald Gunther ed., 1969), at 196, 199.
196. See Andrew Jackson, Veto Message (July 10, 1832), in 3 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 1139 (James D. Richardson ed., New York, Bureau of Nat'l Literature, 1897).
197. Alison L. LaCroix, Federalists, Federalism, and Federal Jurisdiction 24-42 (Univ. of Chi. Law Sch. Pub. Law & Legal Theory Working Paper Series, Paper No. 297, 2010), available at http://ssrn.com/abstract=1558612.
198. 9 U.S. (5 Cranch) 61 (1809).
199. 22 U.S. (9 Wheat.) 738 (1824).
200. 22 U.S. (9 Wheat.) 904 (1824).
201. Sedition Act, ch. 74, 1 Stat. 596 (1798).
202. Sedition Act, ch. 74, 1 Stat. 596 (1798) § 2. Note that the Sedition Act did not make it criminal to defame the Vice President-Thomas Jefferson.
203. See DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: DESCENT INTO THE MAELSTROM, 1829-1861, (2005), at 68-110 (tracing the legislative privilege of freedom of speech and debate through British and American history).
204. U.S. CONST. art. I, § 6, cl. 1 ("[F]or any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other Place.").
205. Cf. Tenney v. Brandhove, 341 U.S. 367, 372-76 (1951) (finding a common law privilege of state legislators akin to the privilege for members of Congress reflected in the Speech or Debate Clause).
206. For a detailed history of the Resolutions, see generally Adrienne Koch & Harry Ammon, The Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of Civil Liberties, 5 WM. & MARY Q. (3d ser.) 145 (1948).
207. James Madison, Virginia Resolutions of 1798, reprinted in 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 528, 528 (Jonathan Elliot ed., 1907) [hereinafter ELLIOT'S DEBATES].
208. James Madison, Virginia Resolutions of 1798, reprinted in 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 528, 528 (Jonathan Elliot ed., 1907).
209. James Madison, Virginia Resolutions of 1798, reprinted in 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 529.
210. Thomas Jefferson, Kentucky Resolution of 1798, reprinted in 4 ELLIOT'S DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 540, 540.
211. Thomas Jefferson, Kentucky Resolution of 1798, reprinted in 4 ELLIOT'S DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 540, 540.
212. Thomas Jefferson, Kentucky Resolution of 1798, reprinted in 4 ELLIOT'S DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 540, 540. at 542.
213. see also Adrienne Koch & Harry Ammon, The Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of Civil Liberties, 5 WM. & MARY Q. (3d ser.) 145 (1948), at 158 (noting that the "steps proposed" in the Kentucky Resolution "were extremely temperate").
214. Wayne D. Moore, Reconceiving Interpretive Autonomy: Insights from the Virginia and Kentucky Resolutions, 11 CONST. COMMENT. 315, 321-23 (1994) (noting that the Kentucky Resolution of 1798 did not advocate nullification).
215. Answer of the State of Delaware, in 4 ELLIOT'S DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 532, 532.
216. Answer of the Commonwealth of Massachusetts, in 4 ELLIOT'S DEBATESIN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 533, 534 (insisting that the legislature "cannot admit the right of the state legislatures to denounce the administration of that government to which the people themselves, by a solemn compact, have exclusively committed their national concerns").
217. Answer of the Commonwealth of Massachusetts, in 4 ELLIOT'S DEBATESIN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 533, 534
218. See Answer of the Commonwealth of Massachusetts, in 4 ELLIOT'S DEBATESIN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 534.
219. Answer of the State of New Hampshire, in 4 ELLIOT'S DEBATESIN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 538, 539.
220. Answer of the State of New York, in 4 ELLIOT'S DEBATESIN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), 537, 537-38.
221. Answer of the State of Rhode Island and Providence Plantations, in 4 ELLIOT'S DEBATESIN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 533, 533.
222. Answer of the State of Vermont, in 4 ELLIOT'S DEBATESIN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 539, 539.
223. Thomas Jefferson, Kentucky Resolution of 1799, reprinted in 4 ELLIOT'S DEBATESIN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 544, 545.
224. Thomas Jefferson, Kentucky Resolution of 1799, reprinted in 4 ELLIOT'S DEBATESIN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 544, 545.
225. Wayne D. Moore, Reconceiving Interpretive Autonomy: Insights from the Virginia and Kentucky Resolutions, 11 CONST. COMMENT. (1994), at 331.
226. Thomas Jefferson, Kentucky Resolution of 1799, reprinted in 4 ELLIOT'S DEBATESIN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 545.
227. James Madison, Report on the Virginia Resolutions, in 4 ELLIOT'S DEBATESIN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 546.
228. James Madison, Report on the Virginia Resolutions, in 4 ELLIOT'S DEBATESIN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 548.
229. James Madison, Report on the Virginia Resolutions, in 4 ELLIOT'S DEBATESIN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 549.
230. James Madison, Report on the Virginia Resolutions, in 4 ELLIOT'S DEBATESIN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 549.
231. James Madison, Report on the Virginia Resolutions, in 4 ELLIOT'S DEBATESIN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 578.
232. James Madison, Report on the Virginia Resolutions, in 4 ELLIOT'S DEBATESIN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 1907), at 579.
233. See THE FEDERALIST NO. 28, at 181 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
234. THE FEDERALIST NO. 28, (Clinton Rossiter ed., 1961), at 181 (Alexander Hamilton), and accompanying text.
235. Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1449 (1987), at 1502.
236. Adrienne Koch & Harry Ammon, The Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of Civil Liberties, 5 WM. & MARY Q. (3d ser.) 145 (1948), at 170.
237. see also Adrienne Koch & Harry Ammon, The Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of Civil Liberties, 5 WM. & MARY Q. (3d ser.) 145 (1948), at 176 (noting that the Resolutions "served as efficient rallying devices for Republicans from Vermont to Georgia").
238. See H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885, 934 (1985) ("[T]he Resolutions were triumphantly vindicated, at least in Republican eyes, by the results of the election of 1800, in which the Republicans seized control of both Congress and the Presidency from the Federalists.").
239. DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD, 1789-1801, at 273 (1997).
240. See H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885, 934 (1985), at 934 ("The victors viewed the 'revolution of 1800' as the people's endorsement of the approach to constitutional interpretation embodied in the 'doctrines of '98.'" (footnote omitted)).
241. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 108.
242. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 6.
243. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 6.
244. And perhaps intrabranch conflict, as well. Gerard Magliocca has recently pointed out that each house of Congress has a number of pressure points that it can use to try to get the other house to change the way it does business. See Gerard N. Magliocca, Reforming the Filibuster, 105 NW. U. L. REV. (forthcoming 2011) (manuscript at Part III), available at http://ssrn.com/abstract=1564747.
245. My argument is thus one that Sandy Levinson, in his helpful taxonomy, would characterize as institutionally protestant. See SANFORD LEVINSON, CONSTITUTIONAL FAITH 44 (1988) ("A 'protestant' Constitution is a deinstitutionalized, or at least, given the ubiquity of our life within institutional contexts, nonhierarchical, Constitution.").
246. In this regard, my claim is similar to Eric Posner and Adrian Vermeule's argument that the Constitution sometimes fosters the conditions for separation-of-powers "showdowns." See Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. PA. L. REV. 991, 1004 (2008) (noting that showdowns require more than an interbranch disagreement about policy; they require "a disagreement about authority").
247. Posner and Vermeule argue that the principal virtue of such showdowns is that they set precedents that "clarif[y] constitutional authority, reducing decision costs for the government and public in the future." Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. PA. L. REV. 991, 1004 (2008), at 1010. They are undoubtedly correct that such conflicts produce precedents that are useful in guiding our thinking in future conflicts, but I aim to emphasize here that it is precisely the unsettling nature of such conflicts-which Posner and Vermeule view entirely as a cost-that can actually be a source of some of their most significant benefits.
248. See ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 113-20.
249. See ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 113-14 (discussing the history of the pamphlet).
250. see also THOMAS JEFFERSON, DRAFT OF INSTRUCTIONS TO THE VIRGINIA DELEGATES IN THE CONTINENTAL CONGRESS (July 1774), in 1 JEFFERSON PAPERS OF THOMAS JEFFERSON (Julian P. Boyd ed., 1974), at 121, 135 n. (same).
251. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 121.
252. See ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 113-20.
253. THOMAS JEFFERSON, DRAFT OF INSTRUCTIONS TO THE VIRGINIA DELEGATES IN THE CONTINENTAL CONGRESS (July 1774), in 1 JEFFERSON PAPERS OF THOMAS JEFFERSON (Julian P. Boyd ed., 1974), at 129.
254. 18 H.L. JOUR. 506 (Mar. 11, 1708).
255. see also F.W. MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 423 (H.A.L. Fisher ed., 1908) (mentioning Anne's refusal of royal assent to the Scottish Militia Bill). As William Everett noted, Anne's veto was tied up in the continuing fallout from the Glorious Revolution and the Act of Union: [T]he sudden outbreak of Jacobite insurrection, supported from France and directed to Scotland, would naturally create a dread of establishing a militia in that part of the island, still chafing under the unpopular Act of Union, and with many of its Lords Lieutenants, who would be commanders of the militia, notoriously disaffected.
256. William Everett, The Last Royal Veto, 5 PROC. MASS. HIST. SOC'Y (2d ser.) 156, 159 (1889).
257. See Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. 1083, 1117-19 (2009) (describing the Revolution Settlement).
258. See MARY TAYLOR BLAUVELT, THE DEVELOPMENT OF CABINET GOVERNMENT IN ENGLAND 103-05, 139 (1902) (noting the gradual rise of cabinet government under Anne and the first two Hanoverian Monarchs).
259. See JOSH CHAFETZ, DEMOCRACY'S PRIVILEGED FEW: LEGISLATIVE PRIVILEGE AND DEMOCRATIC NORMS IN THE BRITISH AND AMERICAN CONSTITUTIONS 168, 183, 188 (2007), at 1 ("The British Constitution cannot be distinguished from institutional interpretations of it: the actual, current structure of institutions is constitutive of the Constitution itself.").
260. A.F. POLLARD, THE EVOLUTION OF PARLIAMENT 275 (2d ed. 1964).
261. WALTER BAGEHOT, THE ENGLISH CONSTITUTION 53 (Miles Taylor ed., Oxford World's Classics 2001) (1867).
262. See THE FEDERALIST NO. 28, at 181 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
263. THE FEDERALIST NO. 28, (Clinton Rossiter ed., 1961), at 181 (Alexander Hamilton).
264. THE FEDERALIST NO. 46, (Clinton Rossiter ed., 1961), at 299 (James Madison) and accompanying text.
265. See JOSH CHAFETZ, DEMOCRACY'S PRIVILEGED FEW: LEGISLATIVE PRIVILEGE AND DEMOCRATIC NORMS IN THE BRITISH AND AMERICAN CONSTITUTIONS 168, 183, 188 (2007), at 27-48 (discussing the history of the relationship between lex parliamenti and lex terrae and noting that the former has always had some autonomy from the latter).
266. See JOSH CHAFETZ, DEMOCRACY'S PRIVILEGED FEW: LEGISLATIVE PRIVILEGE AND DEMOCRATIC NORMS IN THE BRITISH AND AMERICAN CONSTITUTIONS 168, 183, 188 (2007), at 69-74 (discussing Parliament's clashes with the Crown over the privilege of freedom of speech).
267. JOSH CHAFETZ, DEMOCRACY'S PRIVILEGED FEW: LEGISLATIVE PRIVILEGE AND DEMOCRATIC NORMS IN THE BRITISH AND AMERICAN CONSTITUTIONS 168, 183, 188 (2007), at 116-22 (discussing Parliament's insistence on using its own authority to vindicate its freedom against civil arrest).
268. JOSH CHAFETZ, DEMOCRACY'S PRIVILEGED FEW: LEGISLATIVE PRIVILEGE AND DEMOCRATIC NORMS IN THE BRITISH AND AMERICAN CONSTITUTIONS 168, 183, 188 (2007), at 145-51 (discussing Parliament's insistence on judging the elections and qualifications of its own members).
269. Chafetz, Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. (2009), at 1095-1119 (discussing Parliament's use of its contempt powers against Crown officials).
270. Josh Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 DUKE L.J. 177, 213-14 (2008), at 186-95 (discussing Parliament's insistence on being the only institution that could excuse its members from service).
271. See Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. (2009), at 1100-16, 1147.
272. The trial of Charles I after the end of the War was merely the façade of judicial procedure. masking what was, ultimately, a revolutionary act. See Josh Chafetz, Impeachment and Assassination, 95 MINN. L. REV. 347, 385-88 (2010).
273. See Josh Chafetz, Impeachment and Assassination, 95 MINN. L. REV. 347, 385-88 (2010), at 367-69, 385.
274. see also JACK P. GREENE, NEGOTIATED AUTHORITIES: ESSAYS IN COLONIAL POLITICAL AND CONSTITUTIONAL HISTORY 189-207 (1994) (discussing the extent to which colonial legislatures modeled their behavior toward royal governors on parliamentary opposition to the Stuart Crown).
275. On the history of the courts' use of the phrase "ultimate arbiter" to refer to their own constitutional role, see Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. (2009), at 1153-54.
276. For ease of presentation, I limit my discussion here to judicial nominees. The same analysis could be applied, however, to the Senate confirmation process for other nominees-both those in the executive branch and those in "quasi-judicial and quasi-legislative" independent agencies. See Humphrey's Ex'r v. United States, 295 U.S. 602, 624 (1935). Although different senators may find different levels of scrutiny appropriate depending on the office to which the nominee is nominated, the exercise of line-drawing remains fundamentally one of constitutional politics.
277. STEPHEN L. CARTER, THE CONFIRMATION MESS: CLEANING UP THE FEDERAL APPOINTMENTS PROCESS, at x (1994).
278. 156 CONG. REC. S4611 (daily ed. June 7, 2010) (statement of Sen. Leahy).
279. 156 CONG. REC. S4611 (daily ed. June 7, 2010) (statement of Sen. Leahy).
280. This principle is, however, frequently tempered by the caveat that the nominee's approach must be within the "mainstream" of legal thought. See, e.g., 156 CONG. REC. S4592 (daily ed. June 7, 2010) (statement of Sen. Specter) (noting that he had voted to confirm every Supreme Court nominee during his tenure in the Senate except for Robert Bork, whose "testimony placed him well outside the judicial mainstream").
281. See, e.g., Editorial, Please, No Spectacle: Kagan May Be Fourth Straight Qualified-Yet-Demonized Nominee, SAN DIEGO UNION-TRIB., May 11, 2010, at B5 ("[P]residents deserve[] deference to their high court nominees so long as they [are] scandal-free and wellqualified.").
282. Senator Charles Schumer, Questioning Judicial Nominees: A Duty Not a Privilege, Speech to the Center for American Progress and the American Constitution Society (July 14, 2005), available at http://schumer.senate.gov/new_website/record.cfm?id=260657.
283. see also Charles E. Schumer, Op-Ed., Judging by Ideology, N.Y. TIMES, June 26, 2001, at A19 ("It would be best for the Senate, the president's nominees and the country if we return to a more open and rational debate about ideology when we consider nominees.").
284. Charles L. Black, Jr., A Note on Senatorial Consideration of Supreme Court Nominees, 79 YALE L.J. 657, 657 (1970).
285. Elena Kagan, Confirmation Messes, Old and New, 62 U. CHI. L. REV. 919, 935 (1995).
286. Elena Kagan, Confirmation Messes, Old and New, 62 U. CHI. L. REV. (1995), at 935-36.
287. Elena Kagan, Confirmation Messes, Old and New, 62 U. CHI. L. REV. (1995), at 940-41.
288. See Charlie Savage & Sheryl Gay Stolberg, Kagan Follows Precedent by Offering Few Opinions, N.Y. TIMES, June 30, 2010, at A1 ("Ms. Kagan's responses, during a long and sometimes tense day of parrying with members of the Senate Judiciary Committee, were similar to those of Supreme Court nominees past. But unlike her predecessors, Ms. Kagan wrote a 1995 article calling for judicial nominees to be more forthcoming. On Tuesday, minutes into her testimony, she backpedaled....").
289. see also Dion Farganis & Justin Wedeking, Kagan's Candor: Updated Findings from the Recent Supreme Court Confirmation Hearings (July 6, 2010) (unpublished manuscript), available at http://ssrn.com/abstract=1635240 (finding that Kagan responded in a forthcoming manner to roughly the same percentage of questions as other recent Supreme Court nominees).
290. GEORGE WATSON & JOHN A. STOOKEY, SHAPING AMERICA: THE POLITICS OF SUPREME COURT APPOINTMENTS 21 (1995).
291. See U.S. CONST. art. II, § 2, cl. 2 (The President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... Judges of the supreme Court, and all other [principal] Officers of the United States, whose Appointments are not herein otherwise provided for.... ").
292. See Henry Paul Monaghan, The Confirmation Process: Law or Politics?, 101 HARV. L. REV. 1202, 1208 (1988) ("The Senate's actual role in the confirmation process depended upon the shifting balance of political power between Congress and the President.").
293. See GEORGE WATSON & JOHN A. STOOKEY, SHAPING AMERICA: THE POLITICS OF SUPREME COURT APPOINTMENTS 21 (1995), at 41.
294. see also LEE EPSTEIN & JEFFREY A. SEGAL, ADVICE AND CONSENT: THE POLITICS OF JUDICIAL APPOINTMENTS 108 (2005) (noting that higher presidential approval ratings tend to translate into easier confirmation for the President's nominees).
295. See Paul A. Freund, Appointment of Justices: Some Historical Perspectives, 101 HARV. L. REV. 1146, 1155 (1988) (suggesting, perhaps somewhat hyperbolically, that "one of the most politically advantageous decisions that a weakened President can take is to appoint to the Supreme Court a universally respected jurist").
296. See Elena Kagan, Confirmation Messes, Old and New, 62 U. CHI. L. REV. (1995), at 940 (noting that the Bork hearings "captivated and involved" the citizenry in substantive constitutional discourse).
297. John O. McGinnis, The President, the Senate, the Constitution, and the Confirmation Process: A Reply to Professors Strauss and Sunstein, 71 TEX. L. REV. 633, 637 (1993).
298. see also John O. McGinnis, The President, the Senate, the Constitution, and the Confirmation Process: A Reply to Professors Strauss and Sunstein, 71 TEX. L. REV. (1993), at 658-59 (elaborating on this cathartic conflict).
299. See Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. (2009), at 1143-46.
300. See Akhil Reed Amar, Nixon's Shadow, 83 MINN. L. REV. 1405, 1410 (1999) ("As a matter of separation of powers, each branch must have some internal space-a separate house, if you will-to ponder its delicate business free from the intermeddling of other branches. Senators must be free to talk candidly and confidentially amongst themselves and with staff in cloakrooms; judges must enjoy comparable freedom in superconfidential judicial conferences, and in conversations with law clerks; jurors in the jury room ordinarily deliberate together with absolute secrecy to promote candor; and the same basic principle holds true for the Presidency and the Oval Office.").
301. See Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008).
302. Senate Select Comm. on Presidential Campaign Activities v. Nixon, 370 F. Supp. 521 (D.D.C. 1974), aff'd, 498 F.2d 725 (D.C. Cir. 1974).
303. See Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. (2009), at 1146-47 (noting that the resolution of such cases by the judiciary was a late-twentieth-century innovation).
304. See Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. (2009), at 1149-50.
305. See Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. (2009), at 1150-51, 1155.
306. See Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. (2009), at 1152-53.
307. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 28 (1997).
308. See THE FEDERALIST NO. 28, at 181 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
309. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954) and accompanying text.
310. See Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. (2009), at 1150-51.
311. Josh Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 DUKE L.J. 177, 213-14 (2008), at 182-83, 224-36.
312. U.S. CONST. art. VI, cl. 2.
313. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
314. See ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 35.
315. See ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 35, Section II.B. Part of where LaCroix and I differ is that she sees our constitutional structure as one in which a single institutional actor-the judiciary-is responsible for maintaining clear lines between which subject matters are reserved to the federal government and which are reserved to the states. As I endeavored to demonstrate in Section II.B, our constitutional structure in fact uses separation-of-powers multiplicity in the service of federalism multiplicity. And, as I have endeavored to demonstrate in Section III.A, multiplicity is in fact characteristic of our constitutional separation of powers as a whole. Part of my critique of LaCroix is thus that she does not follow the logic of multiplicity far enough.
316. Of course, there are also many cases in which the Constitution does specify the relevant institutional site of decisionmaking authority. No one doubts, for example, that only the House can impeach and only the Senate can try impeachments. See U.S. CONST. art. I, § 2, cl. 5.
317. U.S. CONST. art. I, § 3, cl. 6.
318. Nor do I dispute the principle of judgment finality for cases of which courts properly have cognizance. See generally William Baude, The Judgment Power, 96 GEO. L.J. 1807 (2008) (arguing for a principle of judgment finality). My argument here is simply that there is a wide range of separation-of-powers controversies-like those discussed in Section III.A-for which the Constitution does not clearly allocate decisionmaking authority but rather provides the political framework within which the branches can fight it out among themselves. Further, my argument is that, for the reasons to be discussed in this Section, this is a good thing and that we should resist the urge (which most often takes the form of bringing the courts in) to look for some hierarchically superior decisionmaker to impose a global, principled, and final solution that would preempt such interbranch fights.
319. On the concept of polyarchy, see generally ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 63-89 (1956).
320. Or, in the case of Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming, the same size constituency as those states' senators.
321. Again, with the caveat mentioned in Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming, the same size constituency as those states' senators.
322. But cf. BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009) (arguing that the Supreme Court is quite responsive to public opinion).
323. Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1028 (1984).
324. Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. (1984), at 1026.
325. It is precisely this dynamism that allows us to integrate the rise of political parties into the Constitution's separation-of-powers scheme. The virtue of the separation of powers is not that the branches are always, necessarily in conflict. Contra Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2312, 2316-21 (2006) suggesting that the Madisonian conception of the separation of powers relies on constant conflict between the branches and that this conception was "eclipsed almost from the outset" by the rise of political parties). Rather, its virtue is that it creates opportunities within the governing structure for the representation of different interests, thus allowing for the possibility of conflict. Precisely because of the structure of the branches created by our system of separated powers, the existence of a unified government (that is, the House, Senate, and Presidency (and perhaps the courts, as well) all controlled by the same political party) tells us something about the American people: it tells us that we have a temporally extended, significant preference for one party over the other. In such a situation, it makes good democratic sense that there would exist fewer checks on the implementation of that party's governing agenda. This is not a case of the rise of parties defeating the "Madisonian model of inherently competitive branches checking and balancing one another."
326. Contra Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. (2006), at 2329. Rather, this is a case of political parties and the separation of powers working hand-in-hand to ensure the best overall fit between the interests of the represented and the structure of representation. It is, for example, this failure to treat the issue of unified versus divided government as a dependent variable that leads Levinson and Pildes to assert that Westminster-style minority opposition rights are desirable, because "the structural position of the minority party under unified American government is more closely analogous to that of minority parties shut out of parliamentary governments than observers have recognized."
327. Contra Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. (2006), at 2368-69. But-the 2010 election notwithstanding-unified government is very much the norm at Westminster. If, on election day, Labour receives a plurality of the votes in a majority of the constituencies, then it controls the entirety of the government. Unified party government in America is much harder to achieve: it requires not only a majority of seats in the House (the requirements of which are similar to those of putting together a Westminster majority) but also a majority in the Senate (where only a third of the seats are up for election every two years) and the presidency (which comes up only every four years). Moreover, Americans with a preference for divided government can always split their ballot; this is impossible in the United Kingdom, where a vote for your M.P. is also a vote for your P.M. The greater difficulty of unified government in the United States also means that its presence at some times tells us more about the relevant independent variable: the preferences of the American people. If government is divided, then our separation-of-powers structure provides institutional homes for the two parties. If government is unified, then it is because one party is more appealing than the other, generally across several election cycles and across different crosscutting constituencies. In that case, it is democratically desirable to have fewer checks on that party's ability to enact its own agenda. (I should note that Westminster-style opposition rights may well be desirable-but, if they are, it is not because unified American government is structurally similar to Westminster.).
328. Consider, for example, the battle over subpoenas to Harriet Miers and Joshua Bolten in 2007-08.
329. See Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. (2009), at 1086-93.
330. Again, the example of Harriet Miers is illustrative. See generally JAN CRAWFORD GREENBURG, SUPREME CONFLICT: THE INSIDE STORY OF THE STRUGGLE FOR CONTROL OF THE UNITED STATES SUPREME COURT 263-84 (2007) (describing the conflict over Harriet Miers's eventually withdrawn Supreme Court nomination in 2005).
331. Note that the Miers nomination is something of a counterexample for Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2312, 2316-21 (2006).
332. Republicans controlled the Senate by a comfortable margin at the time. President Bush was, however, wildly unpopular. See President Bush-Overall Job Rating, POLLINGREPORT.COM, http://www.pollingreport.com/BushJob.htm (last visited Sept. 5, 2010) (showing that during October 2005-the month in which Miers was both nominated and withdrawn from consideration-President Bush's job approval rating was between 35% and 42% in every national poll).
333. Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. (1984), at 1028.
334. See THE FEDERALIST NO. 28, at 181 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
335. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954).
336. THE FEDERALIST NO. 46, (Clinton Rossiter ed., 1961), at 299 (James Madison) and accompanying text.
337. See Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. PA. L. REV. 991, 1004 (2008), at 1006 (noting that, in a constitutional showdown, "through the mysterious process by which public opinion forms, the public will throw its weight behind one branch or the other, and the branch that receives public support will prevail").
338. THE FEDERALIST NO. 51, (Clinton Rossiter ed., 1961), at 322 (James Madison).
339. This friction may appear unseemly to some, but, as Machiavelli noted of another constitution designed to institutionalize a certain amount of friction, those who condemn the quarrels between the nobles and the plebs [during the Roman Republic], seem to be cavilling at the very things that were the primary cause of Rome's retaining her freedom, [yet] they pay more attention to the noise and clamour resulting from such commotions than to what resulted from them, i.e. to the good effects which they produced. NICCOLÒ MACHIAVELLI, THE DISCOURSES bk. I, ch. 4, at 113 (Bernard Crick ed., Leslie J. Walker trans., Penguin Books 1998) (1531).
340. see also JEREMY WALDRON, THE DIGNITY OF LEGISLATION 34 (1999) ("Machiavelli warned us, almost five hundred years ago, not to be fooled into thinking that calmness and solemnity are the mark of a good polity, and noise and conflict a symptom of political pathology.").
341. Mariah Zeisberg, Constitutional Fidelity and Interbranch Conflict, GOOD SOC'Y, Issue 3, 2004, at 24, 26.
342. Mariah Zeisberg, Constitutional Fidelity and Interbranch Conflict, GOOD SOC'Y, Issue 3, 2004, at 24, 26.
343. See Mariah Zeisberg, Constitutional Fidelity and Interbranch Conflict, GOOD SOC'Y, Issue 3, 2004, at 24, 26. ("By deliberation, I mean more than talk. I also mean to refer to the signals that the branches give each other through their actions....").
344. Elena Kagan, Confirmation Messes, Old and New, 62 U. CHI. L. REV. (1995), at 940 (internal quotation marks omitted).
345. quoting STEPHEN L. CARTER, THE CONFIRMATION MESS: CLEANING UP THE FEDERAL APPOINTMENTS PROCESS, (1994), at 6.
346. Elena Kagan, Confirmation Messes, Old and New, 62 U. CHI. L. REV. (1995), at 940.
347. Elena Kagan, Confirmation Messes, Old and New, 62 U. CHI. L. REV. (1995), at 940.
348. Mariah Zeisberg, Constitutional Fidelity and Interbranch Conflict, GOOD SOC'Y, Issue 3, 2004, at 28.
349. Mariah Zeisberg, Constitutional Fidelity and Interbranch Conflict, GOOD SOC'Y, Issue 3, 2004, at 28.
350. See Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. (2009), at 1150-51.
351. Cf. Ethan J. Leib & Michael Serota, The Costs of Consensus in Statutory Construction, 120 YALE L.J. ONLINE 47, 49-53 (2010), http://yalelawjournal.org/images/pdfs/900.pdf (noting the deliberative virtues of methodological dissensus in statutory interpretation).
352. Seana Valentine Shiffrin, Inducing Moral Deliberation: On the Occasional Virtues of Fog, 123 HARV. L. REV. 1214 (2010) (arguing that it is precisely the vagueness and opacity of legal standards that sometimes deserve celebration because it is these qualities that promote moral deliberation among the subjects of the law).
353. See Werner Z. Hirsch, Reducing Law's Uncertainty and Complexity, 21 UCLA L. REV. 1233, 1234 (1974) ("In terms of efficient allocation of resources, uncertainty about laws tends to increase the cost to transactors and the efficiency with which society conducts its business.").
354. See BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574 (1996) ("Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice... of the conduct that will subject him to punishment.... ").
355. But see Seana Valentine Shiffrin, Inducing Moral Deliberation: On the Occasional Virtues of Fog, 123 HARV. L. REV. (2010), at 1222-29 (defending imprecise standards in certain contract doctrines).
356. Michael Stokes Paulsen, The Civil War as Constitutional Interpretation, 71 U. CHI. L. REV. 691, 716 (2004) (reviewing DANIEL FARBER, LINCOLN'S CONSTITUTION (2003)).
357. see also Michael Stokes Paulsen, The Civil War as Constitutional Interpretation, 71 U. CHI. L. REV. 691, 716 (2004) (reviewing DANIEL FARBER, LINCOLN'S CONSTITUTION (2003)). (referring to the idea that an "'authoritative method is needed to resolve disputes about the meaning of the Constitution'" as "surely one of the great unexamined legal premises of our time").
358. quoting FARBER, LINCOLN'S CONSTITUTION (2003), at 183.
359. See Bruce Ackerman, This Is Not a War, 113 YALE L.J. 1871, 1878 n.20 (2004) (declaring that the inefficiencies created by the separation of powers are a constitutional feature, not a bug).
360. THE FEDERALIST NO. 51, (Clinton Rossiter ed., 1961), at 323 (James Madison).
361. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010), at 6.