John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003 (2009).
Abstract: In recent years, the Supreme Court has embraced a freestanding federalism that is not tied to any particular clause of the Constitution. Rather, because multiple clauses assume the continued existence of states and set up a government of limited and enumerated powers, the Court has inferred that such provisions collectively convey a purpose to establish federalism and to preserve a significant degree of state sovereignty. The Court has treated that general background purpose as a warrant to derive specific but unenumerated limitations on federal power – in particular, a federalism clear statement rule, an anticommandeering principle, and broad state sovereign immunity from suit in state courts. This Article argues that the interpretive methodology underlying the new federalism cases cannot readily be squared with the process insights clearly articulated by the Court in its recent statutory interpretation cases, which endorse the related propositions that lawmaking entails compromise, that enacted texts select means as well as ends, and that abstracting from a law’s specific means to its general aims dishonors the level of generality at which lawmakers choose to legislate. Despite evident differences between statutes and the Constitution, this Article maintains that where, as in the new federalism cases, the Court purports to attribute its holdings to decisions made by the founders pursuant to the processes prescribed by Articles V or VII, its interpretive approach should proceed from the premise that constitutionmaking involves process considerations analogous to those that characterize legislation. Constitutionmaking entails disagreement and compromise by stakeholders who have the right to insist upon compromise as the price of their assent. Moreover, the U.S. Constitution itself represents “a bundle of compromises” and, in the particular area of interest here, quite elaborately spells out the means by which power is to be divided between the federal and state governments. Indeed, emphasizing that federalism was an innovation of our Constitution, this Article maintains that the specific means chosen to implement our form of concurrent sovereignty in fact define the concept of federalism and that, contrary to the Court’s recent cases, there is no freestanding federalism.