The jurisprudence of union.

• Author: Seinfeld, Gil
• Position: Abstract through II. The Constitutional Interest in Union: Other Applications, p. 1085-1116

ABSTRACT

The primary goal of this Article is to demonstrate that the interest in national unity does important, independent work in the law of vertical federalism. We have long been accustomed to treating union as a constitutionally operative value in cases involving the duties states owe me another (i.e. horizontal federalism cases), but in cases involving the relationship between the federal government and the states, the interest in union is routinely ignored. This Article shows that, across a wide range of cases relating to the allocation of power between the federal government and the states, the states are constrained by a duty to acknowledge their status, and their citizens' identities, as members of a political community that is national in scope. These decisions are conventionally defended (by both courts and commentators) in supremacy-based terms. But I will show that they are rooted, instead, in an ethic of union.

INTRODUCTION

Union is an important constitutional value. It is listed first in the Preamble among the aspirations motivating the adoption of the new charter; (1) it is the central value underlying numerous fragments of constitutional text such as the Full Faith and Credit Clause (2) and the Privileges and Immunities Clause; (3) and it is the driving force behind familiar bodies of judge-made law such as the cases relating to the dormant commerce power. All of this is common ground. Courts and scholarly commentators unhesitatingly acknowledge that these features of our constitutional architecture are motivated by the interest in union--by which I mean the interest in binding the several states into a single political community. They are designed, as one case put it, "to help fuse into one Nation a collection of independent, sovereign States." (4)

But judicial and scholarly engagement with the constitutional interest in union is characterized by a significant blind spot: vertical federalism is largely ignored. That is, while we have long been accustomed to treating union as a constitutionally operative value in cases relating to the duties states owe one another, (5) it has received scant attention where the relationship between the federal government and the states is at issue. (6) This is a mistake. Union is a constitutional value with ramifications across both contexts. It constrains states not only in their treatment of other states, their citizens, and their laws, but in their orientation toward the national government and federal law as well.

Part of the reason for our collective inattention to the constitutional interest in union is our tendency, in vertical federalism cases, to focus exclusively on the tug of war between the values of national supremacy and state autonomy. Seen through this prism, the central challenge in a vertical federalism case is to strike the proper balance between these fundamental goals, typically by deciding which must give way to the other. In many contexts, this is an entirely sensible way to approach problems of vertical federalism. The values of national supremacy and state autonomy are enshrined in the Constitution's text. (7) Careful consideration of each, and their relationship to one another, is essential to clear thinking about a host of issues in the law of federal-state relations, including the scope of federal legislative power under the Commerce Clause, Congress's authority to regulate states in connection with traditional government functions, and the scope of states' immunity from damages actions arising under federal law. But it is not always so. Sometimes, if we want to get a handle on what's at stake in a vertical federalism case, it is necessary to consult the constitutional interest in union. (8)

The primary goal of this Article is to demonstrate that the constitutional interest in union does important, independent work in vertical federalism cases. I will show, in particular, that across a wide range of cases relating to the allocation of power between the federal government and the states, the states are constrained by a duty to acknowledge their status, and their citizens' identities, as members of a political community that is national in scope. These decisions, we will see, are conventionally defended in supremacy-based terms. But in fact they are driven by an ethic of union.

Shifting to a union-based understanding of these pockets of case law has three principal virtues. First, and most narrowly, union supplies a more persuasive analytic foundation for the Court's decisions in these areas than the standard supremacy-based accounts. The cases in question are rightly decided, but you could be forgiven for having doubts after reading the Justices' opinions. Second, greater attention to union's role across these bodies of case law affords us a clearer picture of the structure of our Constitution. It reveals that supremacy is not the only constitutional value doing nationalist work in our federal system, and that union's influence on the shape of our federalism is not limited to matters of interstate relations. Finally, a union-based approach allows us to better understand the character of the legal rules established in these cases. In particular, it calls attention to the fact that the rules in question are concerned with the expressive significance of the law. They are concerned, in other words, not with the direct material consequences of the state statutes under review, but with the fact that those statutes send the wrong message about the relationship between the national government and the states. Supremacy-based analysis obscures this point entirely.

This last point is of particular interest because, while expressivist approaches to constitutional rules pertaining to individual rights have received a great deal of scholarly attention, (9) academic commentary exploring expressivism and federalism is in relatively short supply. (10) And while a small number of scholars have joined issue on the question of whether federal law might be unconstitutional because it expresses the wrong view of state sovereignty or state autonomy, (11) the relevant commentary generally neglects the possibility that state law might be constitutionally infirm because it expresses the wrong view of the national government, federal law, or our union. (12) But there is no reason to think that arguments about expressivism and federalism should run in one direction only and, indeed, the cluster of cases I explore here supports exactly this point. To see this, however, one must look beyond the supremacy frame that so dominates the Justices' opinions and the attendant academic commentary.

My analysis proceeds in three parts. Part I lays the foundation for my claim that the constitutional interest in union does important work in vertical federalism cases. It does so through a detailed analysis of the Supreme Court's "valid excuse" decisions--the line of cases relating to the constitutional limits on state courts' authority to decline jurisdiction over federal causes of action. I will show that the interest in national supremacy has emerged as the dominant theme in these cases--especially in the Supreme Court's 2009 decision in Haywood v. Drown, (13) which represents the most recent installment in this line--and that the interest in union has received only superficial attention. I then argue that the supremacy-based rationale relied upon by the Court supplies an inadequate foundation for the constraints on state autonomy recognized by the Justices, and I attempt to demonstrate that the cases are better understood by reference to the constitutional interest in union.

Part II situates the valid excuse cases within a broader constitutional framework. It examines Supreme Court decisions from the disparate fields of intergovernmental tax immunity, foreign affairs, and voting rights to help build the case that Haywood and its forebears are part of a wide-ranging jurisprudence of union. Here too, we will see that judges and commentators tend to favor supremacy-based accounts of the relevant legal rules, and here too we will see that these accounts are wanting.

In Part III, finally, I attempt to deepen our understanding of the jurisprudence of union. I do this, first, by demonstrating that the constraints on state autonomy explored in this Article are best understood in expressivist terms. Next, I test the constitutional bona fides of the jurisprudence of union by considering its fit with constitutional text, history, structure, and precedent, and by assessing whether the union-based constraints on state autonomy tend to advance or undermine the functional values typically associated with our federal system. I conclude with a brief assessment of how the jurisprudence of union might apply in contexts not yet considered by the courts.

1. STATE JURISDICTIONAL AUTONOMY, FEDERAL SUPREMACY, AND THE CONSTITUTIONAL INTEREST IN UNION

   1. The Haywood Decision

      Haywood v. Drown involved two [section] 1983 actions filed in New York state court by a prison inmate against employees of New York's Department of Corrections. The plaintiff, Keith Haywood, alleged violations of his civil rights in connection with three prison disciplinary proceedings and an altercation with corrections officers. (14) The trial court dismissed the actions on the ground that section 24 of the New York Correction Law prohibited the exercise of jurisdiction. Section 24 provided that New York courts cannot hear suits for damages filed by prison inmates against corrections officers for actions taken in the scope of their employment. (15) Plaintiffs who wish to file such actions are required, instead, to substitute the State of New York as defendant and to seek relief in the New York Court of Claims. (16) A panel of the New York Appellate Division affirmed the trial court's dismissal, as did the New York Court of Appeals. (17)

      A line of cases stretching back to the early twentieth century establishes...