I thank Prof. Kurt Lash for engaging my work with Robert Cooter on collective action federalism. And I am grateful to Prof. Eugene Volokh for giving me the opportunity this week to blog about the theory and to respond to some of Prof. Lash’s criticism. It speaks volumes about Prof. Volokh that he provides a platform for multiple points of view.
In this, my final post, I will question how Prof. Lash frames the debate in which he is intervening. It is easy to lose sight of the framing when scholars air disagreements about what a certain Framer said, what he meant when he said it, and when he uttered the words. In scholarship, as in litigation, sometimes the framing is critical.
According to Prof. Lash, the choice (as he writes in his article) is between “limited textual enumeration and the need for judicial maintenance of the line between federal and state authority” on the one hand, and Resolution VI on the other, which (according to its advocates) “rejects textual or federalism-based limitations on federal power and instead authorizes Congress to regulate all collective action problems of national importance.”
Similarly, Prof. Lash writes that a collective action approach to the clauses of Article I, Section 8 “would remove all subject matter or categorical boundaries to the scope of federal power.” He continues:
Under the interpretive principle of Resolution VI, courts should not be interpreting text and precedent in a manner that maintains a line between state and federal responsibilities. Instead, courts should simply determine whether the matter involves an issue of national importance beyond the “competency” of the individual states. Under this approach, all congressionally identified “collective action problems” by definition fall within the constitutional powers of Congress, regardless of subject matter and regardless of the intrusion into matters traditionally