Posted by: captainfalcon | August 8, 2011

Very promising series of posts

Neil Siegel and Kurt Lash are blogging on their recent papers about federalism. (Siegel archives; Lash archives.)

Siegel motivates collective action federalism, the view that Article 1, Section 8 confers on the federal government the power to solve national problems that the states cannot successfully coordinate to solve themselves. In his inaugural post, Siegel first draws on the work of Jack Balkin in Commerce to show that the intent behind (and perhaps the original understanding of) Article 1, Section 8 was to empower Congress to solve collective action problems. In addition to arguing that the original intent / meaning of the Constitution is best captured by collective action federalism, Siegel also shows how it can be used to explain current Commerce Clause jurisprudence. It best makes sense of the results in such cases as Wickard, Lopez, Morrison, and Raich.

Lash’s project is more focused. He aims to debunk one of the pillars on which Siegel rests collective action federalism, viz. that it is the original intent or meaning of Article 1, Section 8. He will call into question a story that Balkin has done the most to develop, and that has been amplified in amicus briefs (see, particularly, pp. 10-13) filed in Obamacare litigation by the Constitutional Accountability Center (an organization Balkin helped found). The story is that the animating principle behind Article 1, Section 8 was embodied in the Philadelphia Convention’s Resolution VI, which directed the Committee of Detail that eventually drafted Article 1, Section 8 to empower the Federal Government to ““legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation.”

As Lash explains, Balkin et. al. adduce two pieces of evidence to support the Resolution VI reading of Article 1, Section 8. First, they note that the principle announced in Resolution VI was never repudiated, and was widely understood to be the principle that the Committee of Detail was supposed to reduce to (what you might call) Article 1, Section 8’s “paradigm cases.” Second, they insist that one of the pivotal Framers – James Wilson – explicitly and influentially endorsed the Resolution VI reading as the ratification process was underway. Lash promises to question the significance, and, in the case of James Wilson, the accuracy, of this evidence.

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