Kurt Lash and Neil Siegel, Guest-Blogging

I’m delighted to report that Prof. Kurt Lash (Illinois) and Prof. Neil Siegel (Duke) will be guest-blogging this week on the Constitution and federal power. This isn’t quite a debate, since their arguments differ somewhat in scope; but I thought their perspectives would still provide helpful counterpoints to each other, and would be interesting on their own.

Prof. Lash will be blogging chiefly about his new article, “Resolution VI”: The Virginia Plan and Authority to Resolve Collective Action Problems Under Article I, Section 8. To quote the abstract of the article,

In the past few years, a number of influential constitutional scholars such as Jack Balkin, Robert Cooter, Andrew Koppelman, Neil Siegel and others have called for doing away with the traditional principle of judicially limited enumerated power and replacing it with the principle declared in Resolution VI of the Virginia Plan originally introduced in the Philadelphia Constitutional Convention. According to Resolution VI, federal power should be construed to reach all matters involving the “general interests of the Union,” those “to which the “states separately are incompetent” and those affecting national “harmony.” Resolution VI advocates maintain that, under this principle, Congress has power to regulate all collective action problems of national importance. In support of their claim, Resolution VI advocates argue that the members of the Philadelphia Convention adopted Resolution VI and sent the same to the Committee of Detail with the expectation that the resulting text would be based on this overriding principle of national power, and that they accepted the text of Article I, Section 8 as the enactment of Resolution VI. These scholars also claim (or rely on the claim) that Philadelphia Convention member James Wilson publicly declared during the ratification debates that the framers based Article I, Section 8 on the principle of Resolution VI.

A close reading of the historical sources, however, shows that the framers did not view Article I, Section 8 as having operationalized the general principle of Resolution VI and allowing federal action in all cases in which the “states separately are incompetent.” In fact, they expressly stated otherwise. Even more importantly, it turns out that there is no historical evidence that Resolution VI played any role whatsoever during the ratification debates. Claims to the contrary are based on an error of historical fact.

Prof. Siegel’s work relies partly on Resolution VI, though only partly. His theory of collective action federalism, developed with Robert Cooter of U.C. Berkeley Law, draws from Founding-era history, from evidence in the constitutional text, from subsequent historical understandings and mistakes, and from the ideas of modern economics to provide a structural account of the American federal system established in part by Article I, Section 8. According to the theory, the various clauses of Section 8 form a coherent set, not a collection of unrelated powers. Coherence comes from the connection that the specific powers have to collective action problems that the federal government can address more effectively than the states can address by acting alone. The states often cannot achieve an end when doing so requires multiple states to cooperate.

According to collective action federalism, the clauses of Section 8 empower Congress to solve collective action problems that predictably frustrate the states. In the language of the Commerce Clause, such problems are “among the several States.” Conversely, problems that do not pose collective action problems for the states are internal to a state or local. They are beyond the scope of federal power. Thus the foundation of federalism in Section 8 flows from the relative advantages of the federal government and the states. The theory of collective action federalism reads the clauses of Section 8 as giving the federal and state governments the power to do what each does best.

I’m much looking forward to both Prof. Lash’s and Prof. Siegel’s posts.