The Shadow Powers of Article I

By Lacroix, Alison L. | The Yale Law Journal, April 2014 | Go to article overview

The Shadow Powers of Article I


Lacroix, Alison L., The Yale Law Journal


Introduction

What does American federalism require? Most observers agree on a few general principles: federalism in some form is a fundamental ingredient of the U.S. Constitution; at minimum, federalism means that the powers of the federal government are not unlimited; the exercise of those powers must be grounded in text, structure, or practice; and the states should be understood as having a definite and meaningful identity, ranging from co-equal sovereign to regulatory partner. A commitment to federalism requires, in short, that Americans constantly measure their messy legal and political structure against a hazily defined and capacious idea upon which there is little agreement beyond the fact that many of the Founders regarded federalness as one of the nation's essential attributes. Today, federalism means, at a minimum, viewing both the states and the federal government as legitimate sources of legal and political authority, but little consensus exists as to what that general principle of multiplicity should mean in practice. (1)

Where is American federalism to be found in the Constitution? The word is never mentioned in the document itself, in either the 1787 text or the amendments. But commentators have long recognized that the text, structure, and underlying logic of the Constitution assume and endorse a federal system of government. (2) Modern constitutional law typically focuses on three main textual and doctrinal sources of federalism: (1) the enumeration principle (Article I); (2) judicial review of state law by the Supreme Court (Article III plus the Supremacy Clause of Article VI, Clause 2); and (3) the Supremacy Clause itself, especially the requirement that the Constitution, laws, and treaties of the U.S. are the supreme law of the land and bind judges in the states. (3)

A related but distinct potential locus of federalism in both text and doctrine is the Tenth Amendment, which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." (4) Beginning in the 1930s, and gaining new vigor in the 1970s, the Tenth Amendment became the touchstone for the view that federalism means taking the states seriously as sovereigns. (5) Indeed, for many judges and commentators, the mere invocation of the Tenth Amendment amounts to a normative statement about the value of the states in the federal structure and the concomitant limits on federal power. (6) In some cases, the Tenth Amendment is treated as a constitutional guarantee of "the province of state sovereignty" (7) and "local power always existing" in the states; (8) in others, it is "but a truism that all is retained which has not been surrendered." (9)

How do we know what federalism ought to look like today? Following the invalidation of the Child Labor Act in Hammer v. Dagenhart in 1918, and continuing for much of the twentieth century, the paradigmatic federalism question as framed by the Supreme Court was the correct balance between Congress's power to legislate under Article I, on one hand, and the states' large, ill-defined, and perhaps exclusive regulatory domain on the other. (10) In Hammer, Justice Day, writing for the Court, set forth the robust view of the Tenth Amendment that echoed down through decades of case law:

   In interpreting the Constitution, it must never be forgotten that
   the nation is made up of states to which are entrusted the powers
   of local government.... The power of the states to regulate their
   purely internal affairs by such laws as seem wise to the local
   authority is inherent and has never been surrendered to the general
   government. (11)

Justice Holmes's dissenting opinion, in contrast, crystallized the opposing argument from Article I:

   I should have thought that the most conspicuous decisions of this
   Court had made it clear that the power to regulate commerce and
   other constitutional powers could not be cut down or qualified by
   the fact that it might interfere with the carrying out of the
   domestic policy of any State. … 

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