Author Archive | Neil Siegel, guest-blogging

Collective Action Federalism and Judicial Enforcement of Enumerated Powers

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

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Prof. Lash’s Originalist Claims

I learned from Kurt Lash’s new article, which makes novel and creative claims about historical materials that are important to a variety of theories of constitutional interpretation.  In this post, I will first question some of his originalist conclusions.  More importantly, I will then explain why he offers little reason to reject the structural, nonoriginalist account provided by collective action federalism.   

I am unpersuaded by several of the conclusions that Prof. Lash draws from his examination of the historical materials. 

Regarding the relationship of the Philadelphia Convention to Resolution VI, Prof. Lash makes a persuasive case that the Framers did not intend the resolution to supplant the enumeration of powers in Article I, Section 8.  I am, however, unaware of anyone who disagrees with him on this point. 

Moreover, I do not think he shows that Resolution VI was merely and literally a placeholder, so that its content is irrelevant to the proper interpretation of the various clauses in Section 8.  Prof. Lash himself quotes Madison’s reference to Resolution VI during the Convention as a “general principle on which we should act.”  It seems implausible that Resolution VI could have included absolutely any language at all — even the strong state sovereignty language in the Articles of Confederation — and the result for the proper interpretation of every clause of Section 8 would be the same. 

The incorporation episode during the Convention is not as illuminating as Prof. Lash suggests.  I do not see how it establishes that the delegates rejected the continuing pertinence of the structural principle expressed in Resolution VI after adopting Section 8. 

The episode consisted of one, very brief set of exchanges among only a few of the delegates (one page in Madison’s Notes) towards the end of the Convention (September 14), and it occurred [...]

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What Collective Action Federalism Is and Is Not

I congratulate Ilya Somin on the arrival of Willow.  My daughters stand ready to babysit your beautiful pooch.

In this post, I will clarify the theory of collective action federalism by offering four points about what the theory is and is not.

First, collective action federalism is not a comprehensive structural account of American constitutional federalism.  For example, whatever the implications of the theory for the proper interpretation of other constitutional provisions, a collective action approach does not explain the proper scope of federal powers authorized by the enforcement clauses of the Civil War Amendments.  

The 13th, 14th, and 15th Amendments dramatically changed the balance of power between the federal government and the states by authorizing congressional regulation of the internal policy choices of the states on certain subjects regardless of collective action problems among the states.  These amendments especially aimed to grant basic constitutional rights previously denied to minority groups.  Minorities had been excluded because collective action had succeeded for the majority, not because it had failed. 

Second, collective action federalism offers a structural account of Article I, Section 8, not the institutional roles of Congress and the Court in constitutional interpretation.  Those who endorse vigorous judicial review of federalism questions will interpret collective action federalism in terms of how courts should restrain Congress.  Those who do not will interpret the framework in terms of guidance for conscientious legislators and the political safeguards of federalism.

Third, to the extent courts engage in judicial review of federalism questions, people will disagree about how judges should evaluate congressional judgments about the existence and seriousness of collective action problems, and about the adequacy of Congress’s response.  Congress can always seek to justify legislation by asserting that a collective action problem exists; that its effects are significant; and that the law it has [...]

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The Theory of Collective Action Federalism

I thank Eugene Volokh for inviting me to blog about my work in this highly regarded venue.  Today, I will present the theory of collective action federalism, which I have developed with Robert Cooter of Berkeley Law in a recent article.  Tomorrow, I will clarify what the theory is and is not.  Later in the week, I will offer some thoughts in response to Prof. Kurt Lash’s important new paper.

According to many respected histories, the Framers of the U.S. Constitution met in Philadelphia during the Summer of 1787 and wrote Article I, Section 8, primarily in order to address several collective action problems facing the United States during the 1780s.  They especially wanted to protect the states from commercial warfare against one another and from military warfare by foreigners.  In the Critical Period, the states often acted individually when they needed to act collectively, discriminating against interstate commerce and free riding off the contributions of other states to the federal treasury and the U.S. military.  Moreover, Congress lacked power under the Articles of Confederation to address these problems.

James Madison saw the difficulty in his Vices of the Political System of the United States. Recording various problems with the Articles, Madison underscored “want of concert in matters where common interest requires it,” a “defect . . . strongly illustrated in the state of our commercial affairs.  How much has the national dignity, interest, and revenue suffered from this cause?”  When activities spilled over from one state to another, Madison and other nationalist Framers recognized that the actions of individually rational states produced irrational results for the nation.  

This is the definition of a collective action problem.  The solution lay with the establishment of a more comprehensive unit of government.  The federal government would require the authority to [...]

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