Doctrinal disorder haunts a generation of Supreme Court decisions construing and applying the strands of the fourteenth amendment. But in a confusion contest between the Court and academic writers on constitutional law, picking a winner would be no simple task. Those of us in the academy, despite our comparatively ample time for reflection, have long resisted discussion of fundamental issues.
Professors Tribe and Michelman, two of our ablest writers, illustrate my point in their provocative recent essays on National League of Cities v. Usery. Neither purports to erect more adequate scaffolding for the decision's federalism foundation. Rather, each attempts to transform the decision into one which, in Professor Tribe's words, will contribute to a "just constitutional order." That order, in turn, has a centerpiece, a theory of "affirmative" constitutional claims against the government. I doubt that the persuasiveness of such a theory is enhanced by this reworking of National League of Cities. My interest, however, is in the underlying theory, for which National League of Cities ostensibly becomes both"surprising" supporting evidence and an attractive, though subtle, showcase.
Henry P. Monaghan,
The Constitution Goes to Harvard,
Harv. C.R.-C.L. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/633