This paper is a contribution to a Symposium on Professor Bradford Clark's essay, "Separation of Powers as a Safeguard of Federalism," 79 Tex. L. Rev. 1321 (2001). Clark's essay, focused on original understandings of the Supremacy Clause, gives a cogent account of its politics and the centrality of its language to the most fundamental of constitutional compromises, that between the large states and the smaller states fearing domination in a world of simple democracy. It was not only that they won Senate representation by states, not populations, that could never be changed by amendment; it was also, and perhaps more importantly, that their own capacity to govern their populations, their obligations to place federal law above their own, could be affected only by measures in which the Senate participated – constitutional amendments, statutes, and treaties. Their equality in the Senate, then, had real bite. If the Senate did not participate in the measure, the Supremacy Clause would impose no obligation.
My paper raises some issues about the textual basis for the argument. The diction of the Supremacy Clause was changed on the Convention floor from clear references to congressional action to its current more ambiguous form, "the Laws of the United States made in pursuance [of the Constitution]"; and my essay suggests a variety of reasons – not the least of them the President's obligation to "take Care that the Laws be faithfully executed" – for understanding "Laws" to include Supreme Court precedent, such as constitutional interpretations, that will not have been voted on by the Senate. And Article III's reference to "Law" as synonymous with common law confirms that the founders understood that in creating courts they were creating bodies capable of acting in ways that would impose obligations on parties properly brought before them. Erie Railroad v. Tompkins emphatically teaches that federal courts cannot independently make common law where Congress cannot legislate – that "made in pursuance [of the Constitution]" constrains the courts as well as the Congress. But it is not a repudiation of common-law authority, and is satisfied if taken as a repudiation of the late Nineteenth Century Court's remarkable proposition that it could create common law in diversity cases, on questions about which it would not permit Congress to legislate.
Chiefly the paper argues for dynamic rather than static interpretation of the Constitution. It frames the contrast between dynamic and originalist approaches to constitutional meaning, in terms suggested by Freytag v. Commissioner, 501 U.S. 868 (1991), a strained Court effort to return to the foundational theory of the Appointments Clause that, in my judgment, Justice Scalia has strongly and properly criticized. The judicial task is to understand and enforce constitutional text in a manner that, embodied with its general spirit, finds that meaning best suited both to continuity with established understandings and to the exigencies of the present; on this view, the Founders' theory of the Supremacy Clause is unpersuasive for the present day. Like the complexity of our government's structure, the meaning of "our federalism" has changed dramatically since the Founders acted. The Civil War (with its resulting constitutional amendments) and the development of a truly national economy, neither of which figure prominently in Professor Clark's analysis, each had the practical effect of enormously expanding federal authority in relation to state, of greatly increasing the extent to which state law must exist in the shadow of federal. Whatever the Founders' theoretical expectations may have been, that is, the passage of time has overcome them. The Constitution must, necessarily, be interpreted by federal judges in a way that amounts to the development of common law, and this must be binding on the states and their judges; so also for "federal question" common law, however limited its scope, and for the regulations of agencies acting under appropriately delegated authority.
Peter L. Strauss,
The Perils of Theory,
Notre Dame Law Review, Vol. 83, p. 1567, 2008; Columbia Public Law Research Paper No. 07-157
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1504