Eugene Volokh's Blog, page 2735
August 8, 2011
Congratulations to Glenn for 10 Years of Instapundit
Glenn Reynolds is celebrating the 10th anniversary of Instapundit by doing what he always does: keeping us up to date on what is going on in the world. Not only is Instapundit the first place I turn to every day for links to news and commentary, but Glenn's efforts have meant a lot to me over the years. Thus it seems somewhat feeble merely to say a heartfelt
"Thank you."
Monday Bear Blogging
Blogging's been light because we've been on the road. Sunday morning we caught a glimpse of another brown bear in the northwest corner of Yellowstone National Park in Gallatin Canyon. One picture came out okay — but it was nothing compared to the moose picture we were able to get last night in the Tetons.
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Crowdsourcing my reading list
What should be my next French novel to listen to in audiobook form, The Charterhouse of Parma (Stendhal) [files here] or Swann's Way (Proust) [files here]? (Both available from Litterature audio.com.)
The Dictionary of Misinformation
My father Vladimir pointed me to this passage in a 1975 book, The Dictionary of Misinformation, which aims to rebut various commonly believed myths:
right to keep and bear arms, the. The second article of the Bill of Rights of the United States Constitution reads — in whole, not in part, italics furnished — "A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." Nothing in the Constitution, thus, forbids the right of federal or state governments to make any gun-control laws they wish in terms of an individual who is not a member of a "well-regulated militia."
I thought our readers might find this interesting, partly because it does reflect what was the generally accepted view among legal academics in 1975, and thus shows just how much things have changed in a few decades.
The Constitutionality of the Joint Select Committee on Deficit Reduction (Established by the Recent Debt Ceiling Act)
The Committee, the Wikipedia entry labeled "United States Congress Joint Select Committee on Deficit Reduction" but redirected from "Super Congress" tells us (as of the time I write this),
is an illegal, unconstitutional joint select committee, created by the Budget Control Act of 2011, enacted on August 2, 2011. The Act was intended to consolidate dictatorial power and prevent the rapid process of sovereign default that would have resulted from the 2011 U.S. Debt Ceiling Crisis and forced the U.S. government to be more accountable for their actions.
I expect that the rhetoric will be removed in the Wikipedia entry in due course, but I've heard others likewise argue that the committee is somehow an unconstitutional "Super Congress" to which congressional power has been improperly delegated.
I don't think this is right; Amanda Rice (Just Enrichment) has a good analysis of why the plan for the Committee (see Title IV of the Budget Control Act) is indeed constitutional, and commenter Brian Bishop adds more on the nondelegation point. Here's my quick analysis:
1. Article I, § 5 of the Constitution provides that "Each House may determine the Rules of its proceedings." This is the basis for how a wide variety of Congressional decisions are delegated in the first instance to committees, and how some matters are delegated to joint committees. And the Act makes clear that, "The provisions of this title are enacted by Congress ... as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such they shall be considered as part of the rules of each House, respectively, or of that House to which they specifically apply."
2. This power doesn't extend to actually allowing some other body, whether a Committee or not, to do things that themselves have the force of law. (See INS v. Chadha.) But under this proposal, the Joint Select Committee would simply submit its work product to Congress; as usual, the House and the Senate would decide whether to enact the law, and the President would decide whether to sign it. To be sure, the fast-track mechanism, with the restrictions on amendments and on the time available for debate, is unusual, and is intended to make the Committee's work product especially influential. But again that's part of the Houses' power to make rules — the time available for debate and the possibility of amendment are themselves artifacts of the current rules of the Houses, and each House may alter those rules for particular kinds of legislation. (My understanding is that this is what has happened, for instance, with the fast-track trade agreement rules.)
3. Of course, the rules made by the Houses at one point may be changed later, and the Act acknowledges this: "The provisions of this title are enacted by Congress ... with full recognition of the constitutional right of either House to change such rules (so far as relating to such House) at any time, in the same manner, and to the same extent as in the case of any other rule of such House." It might be politically difficult to go back on the fast-track system created by the Act — just as it's politically difficult to cut back on the filibuster in the Senate, another example of an important feature of our political system that's created by a Rule of one of the Houses — and I think the authors of the Act wanted that to be politically difficult. But that doesn't make the rule change unconstitutional.
Congressional power questions aren't my core area of expertise, so perhaps I'm missing something here. But my sense is that the establishment and the planned operation of the Joint Select Committee are constitutional, whatever pragmatic objections there might or might not be to this approach.
UPDATE: I originally just said that that the Wikipedia material was quoted from "the Wikipedia entry," but I revised this when I realized — prompted by a reader comment — that the language is now present only in the entry at http://en.wikipedia.org/wiki/Super_Congress, which is titled "'United States Congress Joint Select Committee on Deficit Reduction ... (Redirected from Super Congress)." That text has been removed in the http://en.wikipedia.org/wiki/United_States_Congress_Joint_Select_Committee_on_Deficit_Reduction entry, and I expect that it will soon be removed from the other entry as well. Unfortunately, the "revision history" link at the Wikipedia "Super_Congress" entry actually points to the revision history for the other entry, so it wasn't clear what was happening; and it appears to me that the "edit" link at the "Super_Congress" entry also points to the page that edits the other entry (though I just looked at the link, without trying to edit it). It sounds like the Wikipedia redirection technology has a bit of a bug there.
Resolution VI in Current Scholarship and the ACA Debate
My thanks to Eugene and the Volokh Conspiracy for giving me the opportunity to blog a bit on my new paper, "Resolution VI": The Virginia Plan and Authority to Resolve Collective Action Problems Under Article I, Section 8. In brief, the paper argues that recent efforts to make an historical case for using Resolution VI of the original Virginia Plan as the fundamental principle for construing federal power under Article I, Section 8 are fatally flawed due to both historical omission and historical error.
I am pleased to join Neil Siegel as a co-guest blogger on the subject of Resolution VI, and in later posts I plan on responding to Neil's comments. For now, I plan three substantive posts. This first post presents Resolution VI and the claims of its current proponents. The second and third will address key pieces of historical evidence that I develop in more detail in my article. Because I can only hope to scratch the surface of the historical evidence presented in the article, I am hopeful that those interested in the matter will investigate the fully developed arguments in the scholarly literature, including my own article and others such as the insightful paper by Neil Sielgel and Robert Cooter in the Stanford Law Review.
I begin with Resolution VI of the Virginia Plan. As amended and ultimately adopted in the Philadelphia Convention, Resolution VI declared that Congress should have power:
"[To] legislate in all Cases for the general interests of the Union,
and also in those Cases in which the States are separately incompetent,
or in which the harmony of the United States may be interrupted by the Exercise of Individual Legislation."
Although adopted early in the Convention, the language of Resolution VI was never added to the Constitution. The framers chose instead to enumerate the powers of the federal government in Article I, Section 8. No one at the time suggested that the abandoned language of Resolution VI should be used as a guide to understanding Article I, Section 8. In fact, despite the many and passionate debates over federal power that occurred in the first century and a half of the Constitution, no one suggested that Resolution VI had any relevance at all prior to 1935 when Robert Stern first made the argument in the Harvard Law Review.
The use of Resolution VI as an interpretive guide then disappeared once more until surfacing briefly in a footnote by Professor Akhil Amar in his 2005 book, America's Constitution: A Biography. In that footnote, Amar simply noted that the Committee of Detail translated the general instructions of Resolution VI into the specific powers of Article I, Section 8; he made no argument in favor of using Resolution VI as a foundational principle for constructing national power. It was not 2010, with the relatively contemporaneous publication of Yale Law Professor Jack Balkin's article Commerce in the Michigan Law Review, and Robert Cooter and Neil Siegel's article "Collective Action Federalism: A General Theory of Article I, Section 8," that Robert Stern's original idea received serious scholarly attention and development.
In the short time since their initial publication, a number of scholars and litigators have cited these two articles in support of Resolution VI-based interpretation of federal power. Elizabeth Wydra and Douglas Kendall of the Constitutional Accountability Center, for example, have submitted briefs in several challenges to the health insurance mandate that rely on the work of Jack Balkin and his historical claims about Resolution VI.
So what are these claims? According most Resolution VI scholars, Article I, Section should be read to allow Congress to "legislate . . . in those cases where the states are separately incompetent." This allows Congress to act in all cases affecting the national interest that involve "collective action problems" where States are unwilling or unable to act individually. Although this might seem to be a radically broad reading of federal power, these scholars claim that this was the reading embraced by the Framers themselves. The argument goes like this: The members of the Philadelphia Constitutional Convention adopted Resolution VI and sent the same to the Committee of Detail with the expectation that the resulting constitutional text would operationalize the Convention's adopted understanding of the proper scope of national power. Because Resolution VI represented the framers' intent regarding the proper scope of national power, this supports judicial reliance on Resolution VI as an interpretive guide to constructing the delegated powers of Article I.
In addition to the above claims of original framers' intent, Jack Balkin also claims that framer and future Supreme Court Justice James Wilson publicly declared during the Pennsylvania Ratification debates that the framers based Article I, Section 8 on the underlying principle of Resolution VI. In a passage dismissing Randy Barnett's claim that the framers ultimately rejected Resolution VI, Balkin writes:
"[T]here is no evidence that the convention rejected the structural principle stated in Resolution VI at any point during its proceedings. Indeed, this principle was the animating purpose of the list of enumerated powers that appeared in the final draft, and it was the key explanation that Framer James Wilson offered to the public when he defended the proposed Constitution at the Pennsylvania Ratifying Convention. Wilson was a member of the Committee of Detail and he would certainly have known if the Committee had abandoned the principle of Resolution VI. As Wilson explained, however, the purpose of enumeration was not to displace the principle but to enact it."
This last claim is significant for a number of reasons: If true, it provides evidence that the framers understood Article I, Section 8 as enacting the principle of Resolution VI. It also would provide evidence that Resolution VI became part of the public debate over the ratification of the Constitution. Not only was Wilson an important player in the ratification of the Constitution, a version of Wilson's speech was reprinted in numerous newspapers in months following the Pennsylvania Convention. If Wilson publicly linked Article I, Section 8 to Resolution VI, and did so in a manner that was broadly published across the country, then this opens the door to arguments based on original public meaning–a far more influential form of originalism currently than that of original intent.
Not surprisingly, Balkin's arguments have been quickly embraced by supporters of federal power to force individuals to purchase private health insurance. In his Yale Law Journal On-Line essay, Bad News For Mail Robbers: The Obvious Constitutionality of Health Care Reform, Andrew Koppelman cites Balkin's work and declares that the framers accepted Article I, Section 8 as "the functional equivalent" of Resolution VI. Wydra & Kendall give Balkin's claims about Resolution VI and James Wilson center-stage in their amicus briefs submitted in Virginia v. Sebelius, Seven-Sky v. Holder, and HHS v. Florida. In these briefs, Wydra and Kendall claim that the historical evidence regarding Resolution VI requires courts to read the Commerce Clause as if it meant Resolution VI. As they put it, only by doing so "does the Commerce Clause effectuate the Framers' direction that Congress should have authority 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.'"
My article challenges these claims about Resolution VI. The framers did not believe Article I, Section 8 gave Congress the authority 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." Nor is there any evidence that James Wilson spoke about Resolution VI in his speech in the Pennsylvania Convention. In fact, it's no longer clear that Wilson's speech even included the language cited by Balkin and others in support of their claims regarding Resolution VI and the framers' understanding of federal power. Explaining why I believe this is the case will be the subject of subsequent posts.
The Theory of Collective Action Federalism
I thank Eugene Volokh for inviting me to blog about my work in this highly regarded venue. Today, I will present the theory of collective action federalism, which I have developed with Robert Cooter of Berkeley Law in a recent article. Tomorrow, I will clarify what the theory is and is not. Later in the week, I will offer some thoughts in response to Prof. Kurt Lash's important new paper.
According to many respected histories, the Framers of the U.S. Constitution met in Philadelphia during the Summer of 1787 and wrote Article I, Section 8, primarily in order to address several collective action problems facing the United States during the 1780s. They especially wanted to protect the states from commercial warfare against one another and from military warfare by foreigners. In the Critical Period, the states often acted individually when they needed to act collectively, discriminating against interstate commerce and free riding off the contributions of other states to the federal treasury and the U.S. military. Moreover, Congress lacked power under the Articles of Confederation to address these problems.
James Madison saw the difficulty in his Vices of the Political System of the United States. Recording various problems with the Articles, Madison underscored "want of concert in matters where common interest requires it," a "defect . . . strongly illustrated in the state of our commercial affairs. How much has the national dignity, interest, and revenue suffered from this cause?" When activities spilled over from one state to another, Madison and other nationalist Framers recognized that the actions of individually rational states produced irrational results for the nation.
This is the definition of a collective action problem. The solution lay with the establishment of a more comprehensive unit of government. The federal government would require the authority to tax, regulate interstate and international commerce, raise and support a military, and act directly on individuals.
The delegates at the Philadelphia Convention, in considering the scope of congressional power that would become Section 8, focused on collective action problems among the states. The Convention instructed the midsummer Committee of Detail that Congress would have authority "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." This language, particularly the astute reference to separate state incompetence, apprehends the need to address collective action problems facing the states. When the Committee made its report ten days later, it had changed this language, derived from Resolution VI of the Virginia Plan, into an enumeration of powers closely resembling Section 8 in its final form.
This enumeration was uncontroversial among the delegates; the Convention accepted it without discussion. The delegates apparently grasped the link between the general principles stated in Resolution VI and the specific powers conferred in Section 8. As Robert Stern, Donald Regan, Akhil Amar, Jack Balkin, Andrew Koppelman, and other scholars have concluded, the Committee was embracing, not rejecting, the Resolution's concern about interstate collective action problems when it provided an enumeration.
Robert Cooter and I have observed that the eighteen clauses of Section 8 mostly concern collective action problems created by two kinds of spillovers: interstate externalities and national markets. Clauses 1 and 10 through 16 give Congress the power to internalize the externalities associated with funding the national government, providing for the common defense, establishing a postal network, and securing intellectual property rights. Clauses 3 through 6 give Congress the power to combat impediments to the successful operation of interstate markets.
The theory of collective action federalism draws from this history, from this evidence in the constitutional text, from subsequent historical understandings and mistakes, and from modern economics to provide a structural account of the American federal system established in part by Section 8. Its various clauses form a coherent set, not a collection of unrelated powers. Coherence comes from the connection that the specific powers have to collective action problems that the federal government can address more effectively than the states can address by acting alone.
The states often cannot achieve an end when doing so requires multiple states to cooperate. According to collective action federalism, the clauses of Section 8 empower Congress to solve collective action problems that predictably frustrate the states. In the language of the Commerce Clause in particular, such problems are "among the several States."
Conversely, governmental activities that do not pose collective action problems for the states are internal to a state or local. They are beyond the scope of federal power. Thus the foundation of federalism in Section 8 flows from the relative advantages of the federal government and the states. The theory of collective action federalism reads the clauses of Section 8 as giving the federal and state governments the power to do what each does best.
The distinction between individual and collective action by states gives independent, sensible meaning to the phrase "among the several States" in the Commerce Clause. According to collective action federalism, this phrase references a problem of collective action involving two or more states. This is the key inquiry in determining whether "Commerce," understood by the Court in terms of its economic/noneconomic categorization, is interstate and thus regulable under Clause 3, or is intrastate and thus beyond the scope of the commerce power. Regardless of whether the economic/noneconomic categorization suffices as a definition of "Commerce," a question on which collective action federalism takes no view, this categorization cannot define when such commerce is "among the several States" and when it is internal to one state.
The distinction between activities that pose collective action problems for the states and those that do not best explains why Congress may not usually use its commerce power to regulate such crimes as assault or gun possession in schools, but may regulate an interstate market for guns, wheat, or drugs. That is, collective action federalism offers a way to distinguish the "truly national" from the "truly local" in the context of the Commerce Clause, justifying the outcomes in Wickard v. Filburn, United States v. Lopez, United States v. Morrison, and Gonzales v. Raich.
The Rehnquist Court implicitly considered collective action problems in determining the constitutionality of congressional regulation. Chief Justice Rehnquist wrote in Lopez that the Gun-Free School Zones Act "is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." This statement suggests that the absence of regulation of guns near schools in one state would not undercut the effectiveness of regulations prohibiting them in other states. Justice Kennedy similarly wrote that if a state or local government "determines that harsh criminal sanctions are necessary and wise to deter students from carrying guns on school premises, the reserved powers of the States are sufficient to enact those measures."
The key question presented by these cases is whether there is a spillover of welfare that causes a collective action problem. For example, enforcing a prohibition on guns within school zones seems the opposite of a problem requiring coordination among law enforcement in different states. It seems local: local officials presumably have better information concerning who might carry firearms near schools and better incentives to do something about the problem.
Raich, by contrast, did involve a potential spillover problem. Because it is impossible to distinguish marijuana used for medicinal purposes from marijuana used for other purposes, and because the market for marijuana disrespects state borders, California's authorization of marijuana use for medicinal purposes might make it more difficult for other states to ban marijuana use. If there is no spillover problem for state policing, states should be permitted to go their own way as far as the commerce power is concerned. But if there is a spillover — for instance, medical marijuana use in California makes it more difficult to police drug traffickers at the Arizona border — there is a rationale for federal intervention.
August 7, 2011
Words That Have Different Meaning in Different Parts of the Constitution
A law professor friend of mine raised this question: Could the same word have different meaning in different parts of the Constitution (especially ones that were enacted at the same time, or very nearly at the same time)? Of course, we would normally presume that the same word has the same meaning. (For more on this, see, e.g., Akhil Amar's Intratextualism article and Adrian Vermeule's and Ernie Young's critique of that article.) But could this presumption be rebutted by sufficiently persuasive contextual evidence, based on the surrounding text or on historical evidence? Naturally, these questions have both a descriptive component — what was the meaning of the word in context as it was likely understood during the era in which the Constitution was enacted — and a normative component, which is how modern law should understand the meaning of the word in a particular section.
As readers of this blog might gather from my past posts, I think that words can indeed have different meaning in different parts of the Constitution, if the contextual evidence for such different meanings is sufficiently strong. That, for better or worse, is how English, including legal English, works and has long worked: The same word can have many meanings, some radically different from each other and some slightly different from each other. Maybe it would be better if this weren't so, or if drafters of legal documents were always careful to use only one meaning of each word in a document. But even careful legal drafters are still basically English speakers, and have the habits and conventions of English speakers. So descriptively it is possible that a word was used one way in one provision and another in another, and would have been understood that way at the framing.
And normatively there is no value, I think, in textualism that ascribes meaning to a text that differs from the likely commonly understood meaning of the word in context, especially when the understanding was likely so both at the Framing and today. One can certainly argue against focusing on original meaning or textual meaning, and looking instead to precedent, to one's sense of evolving social norms, to one's sense of felt practical needs, or whatever else — my point here is simply that if one cares primarily about text, it makes little sense to ignore the original meaning of the text. (Even if one thinks that sometimes ordinary plain language modern meaning should trump the original meaning, a view that I do not take, that ordinary plain language modern meaning generally turns on context as well.) There's a lot to be said for attention to text in constitutional interpretation. But textualism isn't always easy, and can't ignore the complexities created by context.
So that's the general point. Here are two specific examples.
1. Consider these two sections from article I, which happen to be right next to each other (emphasis added):
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
As I see it, "Place" in the first section (let's call it the Adjournment Clause) refers to a physical location, but "Place" in the last part of the second section (the Speech or Debate Clause) refers to an institution — two related but not identical meanings of the word. I take it that if Congress wanted to move from the Capitol to, say, the George Washington University law school, it could do that in between sessions but not during a session. That's because that particular GW building is "any other Place" than the Capitol. But if Congress does move from the Capitol to GW between sessions, and then tries to censure or expel a member for something he did in a speech or debate back in the Capitol, he can't object on the grounds that he's now being questioned "in any other Place" than the Place in which his speech or debate occurred.
So Congress sitting at GW is in an "other Place" than the Congress sitting in the Capitol for the purposes of one section, but it's the same "Place" for the purposes of the next section. How can this be? Because that's the way ordinary English, in which the Constitution is written, operates.
Likewise, say that the Congress provides that a federal court can sit in the House of Representatives chamber. I take it that a Representative still couldn't be tried in that court for what he said in a speech or debate in the House. Though the part of the session the House that happens in the room after an adjournment is seen as not being in "any other Place" than the pre-adjournment session, a courtroom trial that happens in the same room is seen as being in "any other Place" than the session of Congress. "Place" for purposes of the Adjournment Clause is a physical location; "place" for purposes of the Speech or Debate Clause is an institution.
2. Likewise, "Law" in Article III of the Constitution is used to mean the opposite of equity, in the old division of legal claims and equitable claims that still remains today in the distinction between legal remedies (such as damages) and equitable remedies (such as injunctions or specific performance): "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." But in other places, the context pretty clearly suggests that "law" refers to all legal rules, both in common law and equity.
For instance, the Supremacy Clause says "the Judges in every State shall be bound [by this Constitution], any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Unless you think this means that state courts are free to ignore the United States Constitution in issuing injunctions, "Laws" must refer to equity principles and not just common-law principles.
Similarly, the Fifth Amendment provides that no person may be deprived of property or liberty without "due process of law." But there "law" must include equity principles and not just common-law principles, even though Article III uses "law" as the opposite of "equity": When federal courts decide "Cases in Equity," they are free (within the boundaries of the rules they are applying) to take property from one party and give it to another -– for instance, using remedies such as specific performance — or to issue injunction that restrict people's liberty, because even an action in equity can be said to provide "due process of law." Indeed, the Seventh Amendment's provision that the jury trial shall be preserved in common law cases, coupled with the Fifth Amendment's provision that "due process of law" is applicable in all cases involving property or liberty, makes clear that "due process of law" can be had even in cases not arising under the common law. (Since the Bill of Rights was ratified only two years after the body of the Constitution, I treat the two as roughly contemporaneous for interpretive purposes; but if you don't accept that, then consider just the Supremacy Clause.)
If I am right as to these examples, then this shows that the Framers did what skilled users of the English language routinely do: used words in different senses in different contexts. It's still reasonable to presume that the same word has the same meaning in different parts of the document, but that presumption is rebuttable by context. Sensible textualism has to take this into account.
Collective Action Federalism
Like Eugene Volokh, I too look forward to the upcoming guest-blogging stints by Kurt Lash and Neil Siegel. It so happens that I recently reviewed Robert Cooter and Neigl Siegel's outstanding article "Collective Action Federalism" on Jotwell, a website where legal scholars review important new scholarship. Here's an excerpt from what I said:
Robert Cooter and Neil Siegel's Collective Action Federalism is probably the most important academic article on constitutional federalism in several years.....
In Collective Action Federalism, Cooter and Siegel argue that the congressional powers enumerated in Article I, Section 8 of the Constitution should be interpreted in light of the goal of giving Congress the authority it needs to address collective action problems among the states. A collective action problem arises when members of a group want a good, but have little or no incentive to contribute to its production, because they can instead try to free ride on the efforts of others.....
The authors argue that Article I, Section 8 should be treated as a "unified whole" rather than as a discrete set of unconnected individual powers. And they propose collective action theory as a unifying framework for interpreting that whole. Where there is an interstate collective action problem, they would give Congress the power to address it. Where no such problem exists, state power should be allowed to prevail....
The greatest strength of Cooter and Siegel's analysis is that it accounts for the interconnections between the various congressional powers and expresses their underlying unity. As they point out, this has advantages under both originalist and nonoriginalist theories of interpretation....
Cooter and Siegel's analysis also has a few problems. It is far from clear that Article I really gives Congress unfettered authority to solve any and all collective action problems among the states. If that were the case, why would the Founders have bothered to carefully enumerate seventeen separate powers plus the Necessary and Proper Clause, instead of a single catch-all "Collective Action Clause?" To their credit, Cooter and Siegel foresaw this issue and tried to address it by arguing that the enumerated powers are not meant to be an exhaustive list, but an illustrative one. Yet it seems unlikely that a merely illustrative list would be so long and precisely detailed. Moreover, treating the list as illustrative renders the Necessary and Proper Clause superfluous. Under that approach, Congress would already have had the power to enact any measures "necessary" to solve any collective action problem, even if they were not specifically listed.
Second, Cooter and Siegel's framework might actually negate certain specifically enumerated powers if it turns out that they are not needed to solve any collective action problems. Consider Congress' power to "establish post offices." It is now clear that private firms such as Federal Express can deliver the mail just as effectively as the federal government, if not more so. And they can easily exclude would-be free riders who try to get away with not paying for postage. Does that render the US Postal Service unconstitutional?
Most importantly, Cooter and Siegel do not consider the possibility that the Constitution should be interpreted to curtail federal government policies that create "public bads," as well as facilitate those that provide public goods. Just as Congress can solve collective action problems, it can also create them. To take one common case, it can enact special interest legislation that benefits small, well-organized groups at the expense of the general public. The repeal of such laws then becomes a nationwide collective action problem, one that the public often fails to solve because individual citizens and states have strong incentives to free ride on such matters. Curtailing such interest group legislation is one possible rationale for interpreting Congress' enumerated powers relatively narrowly. Obviously, state governments often enact harmful special interest legislation of their own. But only Congress can impose such a law on the entire nation at one fell swoop....
Cooter and Siegel rightly argue that "[a] federal constitution ideally gives the central and state governments the power to do what each does best." But a federal constitution must also protect against the dangers posed by both state and federal power. A powerful central government is often "best" at solving national collective action problems. But it is also often the "best" at creating them.... A more comprehensive collective action approach to constitutional federalism must consider both sides of this dilemma.
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