A General Theory of Governance: Due Process and Lawmaking Power
Weinberg, Louise, William and Mary Law Review
This Article proposes a general theory describing the nature and sources of law in American courts. Erie Railroad Co. v. Tompkins is rejected for this purpose. Better, more general theory is available, flowing from the Due Process Clauses. At its narrowest, the proposed theory is consonant with Erie but generalizes it, embracing federal as well as state law and statutory as well as decisional law in both state and federal courts. More broadly, beyond this unification of systemic thinking, the interest-analytic methodology characteristic of due process extends to a range of substantive constitutional problems. These include problems concerning both the intrinsic sources of power and the individual rights that are power's extrinsic limits. This Article argues, further, that in rights-based constitutional litigation, substantial scrutiny should become, and as a practical
matter is, the general rule, and that certain economic rights should have the benefit of substantial scrutiny.
Among the current and recent cases briefly discussed are Sebelius, the "Obamacare" case; Morrison, the Virginia Tech rape case; Kiobel, the Nigerian torture case; Kelo, the failed redevelopment case; Astrue, the in vitro child Social Security case; and Arizona v. United States, the immigration case.
TABLE OF CONTENTS I. A MISSED OPPORTUNITY II. A GENERAL THEORY OF GOVERNMENTAL POWER A. The Curious Dawning of Modern Due Process Theory B. Erie: A Circular and Unconvincing Rationale C. Erie and Due Process D. Due Process, Interest Analysis, and the Source of Power III. REACHING FOR MORE GENERAL THEORY A. The Bearing of Carolene Products B. The "Bite" of Minimal Scrutiny: Pretty Strict Scrutiny in Fact C. The Triumph of Interest Analysis IV. ARTICLE I AND THE LIMITS OF ENUMERATION A. Lists, Tests, Factors B. The Obamacare Case C. The Virginia Tech Rape Case V. ARTICLE III AND THE LIMITS OF ENUMERATION A. The Nigerian Torture Case VI. SUPER-GENERALIZATION A. Rights B. Scrutinizing Scrutiny: The Problem of Economic Rights C. Kelo D. Astrue E. A "Theory of Everything"? (Why the Bill of Rights Is Alive and Well) 1. The Arizona Immigration Case 2. Other Writers VII. ENVOI
I. A MISSED OPPORTUNITY
What are the lawmaking powers of state and nation in this federal union? How are these powers related to the powers of state and nation in their respective courts? How are these powers related to the litigation of rights? These questions are of obvious importance, but we do not seem to have very clear answers. We know what courts usually say they are doing, but we do not seem to have a coherent picture of what courts usually do in fact, or what it lies in their power to do.
Erie Railroad Co. v. Tompkins, (1) with its rich intellectual foundation--its Holmesian realist understanding of the nature of law and the role of courts in fashioning it; (2) its Holmesian positivist insistence that law is not law without some relevant lawgiver; (3) and its Austinian insistence on the deference due to judge-made law, when it applies (4)--should have, and could have, provided a unified theory of lawmaking power. But that did not happen. Erie failed to cover the intellectual ground laid.
For Erie to work as a general theory of American lawmaking power, the Erie Court would have had to find a way to embrace federal as well as state law, statutory as well as decisional law, and state as well as federal courts. The Court would have had to press Erie's positivism further to identify the sources of lawmaking power. And it would have had to address the general problem of allocating lawmaking power, not only within a state, but among the states, and between state and nation. Ideally, a truly general theory would have seen the relation of power to rights. Having stopped short of any of this, Erie can offer only a useful point of departure. …