The Jurisprudence of Union
Seinfeld, Gil, Notre Dame Law Review
The primary goal of this Article is to demonstrate that the interest in national unity does important, independent work in the law of vertical federalism. We have long been accustomed to treating union as a constitutionally operative value in cases involving the duties states owe me another (i.e. horizontal federalism cases), but in cases involving the relationship between the federal government and the states, the interest in union is routinely ignored. This Article shows that, across a wide range of cases relating to the allocation of power between the federal government and the states, the states are constrained by a duty to acknowledge their status, and their citizens' identities, as members of a political community that is national in scope. These decisions are conventionally defended (by both courts and commentators) in supremacy-based terms. But I will show that they are rooted, instead, in an ethic of union.
Union is an important constitutional value. It is listed first in the Preamble among the aspirations motivating the adoption of the new charter; (1) it is the central value underlying numerous fragments of constitutional text such as the Full Faith and Credit Clause (2) and the Privileges and Immunities Clause; (3) and it is the driving force behind familiar bodies of judge-made law such as the cases relating to the dormant commerce power. All of this is common ground. Courts and scholarly commentators unhesitatingly acknowledge that these features of our constitutional architecture are motivated by the interest in union--by which I mean the interest in binding the several states into a single political community. They are designed, as one case put it, "to help fuse into one Nation a collection of independent, sovereign States." (4)
But judicial and scholarly engagement with the constitutional interest in union is characterized by a significant blind spot: vertical federalism is largely ignored. That is, while we have long been accustomed to treating union as a constitutionally operative value in cases relating to the duties states owe one another, (5) it has received scant attention where the relationship between the federal government and the states is at issue. (6) This is a mistake. Union is a constitutional value with ramifications across both contexts. It constrains states not only in their treatment of other states, their citizens, and their laws, but in their orientation toward the national government and federal law as well.
Part of the reason for our collective inattention to the constitutional interest in union is our tendency, in vertical federalism cases, to focus exclusively on the tug of war between the values of national supremacy and state autonomy. Seen through this prism, the central challenge in a vertical federalism case is to strike the proper balance between these fundamental goals, typically by deciding which must give way to the other. In many contexts, this is an entirely sensible way to approach problems of vertical federalism. The values of national supremacy and state autonomy are enshrined in the Constitution's text. (7) Careful consideration of each, and their relationship to one another, is essential to clear thinking about a host of issues in the law of federal-state relations, including the scope of federal legislative power under the Commerce Clause, Congress's authority to regulate states in connection with traditional government functions, and the scope of states' immunity from damages actions arising under federal law. But it is not always so. Sometimes, if we want to get a handle on what's at stake in a vertical federalism case, it is necessary to consult the constitutional interest in union. (8)
The primary goal of this Article is to demonstrate that the constitutional interest in union does important, independent work in vertical federalism cases. I will show, in particular, that across a wide range of cases relating to the allocation of power between the federal government and the states, the states are constrained by a duty to acknowledge their status, and their citizens' identities, as members of a political community that is national in scope. …