A general theory of governance: due process and lawmaking power.

• Author: Weinberg, Louise
• Position: I. A Missed Opportunity through IV. Article I and the Limits of Enumeration B. The Obamacare Case, p. 1057-1087

ABSTRACT

This Article proposes a general theory describing the nature and sources of law in American courts. Erie Railroad Co. v. Tompkins is rejected for this purpose. Better, more general theory is available, flowing from the Due Process Clauses. At its narrowest, the proposed theory is consonant with Erie but generalizes it, embracing federal as well as state law and statutory as well as decisional law in both state and federal courts. More broadly, beyond this unification of systemic thinking, the interest-analytic methodology characteristic of due process extends to a range of substantive constitutional problems. These include problems concerning both the intrinsic sources of power and the individual rights that are power's extrinsic limits. This Article argues, further, that in rights-based constitutional litigation, substantial scrutiny should become, and as a practical

matter is, the general rule, and that certain economic rights should have the benefit of substantial scrutiny.

Among the current and recent cases briefly discussed are Sebelius, the "Obamacare" case; Morrison, the Virginia Tech rape case; Kiobel, the Nigerian torture case; Kelo, the failed redevelopment case; Astrue, the in vitro child Social Security case; and Arizona v. United States, the immigration case.

TABLE OF CONTENTS I. A MISSED OPPORTUNITY II. A GENERAL THEORY OF GOVERNMENTAL POWER A. The Curious Dawning of Modern Due Process Theory B. Erie: A Circular and Unconvincing Rationale C. Erie and Due Process D. Due Process, Interest Analysis, and the Source of Power III. REACHING FOR MORE GENERAL THEORY A. The Bearing of Carolene Products B. The "Bite" of Minimal Scrutiny: Pretty Strict Scrutiny in Fact C. The Triumph of Interest Analysis IV. ARTICLE I AND THE LIMITS OF ENUMERATION A. Lists, Tests, Factors B. The Obamacare Case C. The Virginia Tech Rape Case V. ARTICLE III AND THE LIMITS OF ENUMERATION A. The Nigerian Torture Case VI. SUPER-GENERALIZATION A. Rights B. Scrutinizing Scrutiny: The Problem of Economic Rights C. Kelo D. Astrue E. A "Theory of Everything"? (Why the Bill of Rights Is Alive and Well) 1. The Arizona Immigration Case 2. Other Writers VII. ENVOI I. A MISSED OPPORTUNITY

What are the lawmaking powers of state and nation in this federal union? How are these powers related to the powers of state and nation in their respective courts? How are these powers related to the litigation of rights? These questions are of obvious importance, but we do not seem to have very clear answers. We know what courts usually say they are doing, but we do not seem to have a coherent picture of what courts usually do in fact, or what it lies in their power to do.

Erie Railroad Co. v. Tompkins, (1) with its rich intellectual foundation--its Holmesian realist understanding of the nature of law and the role of courts in fashioning it; (2) its Holmesian positivist insistence that law is not law without some relevant lawgiver; (3) and its Austinian insistence on the deference due to judge-made law, when it applies (4)--should have, and could have, provided a unified theory of lawmaking power. But that did not happen. Erie failed to cover the intellectual ground laid.

For Erie to work as a general theory of American lawmaking power, the Erie Court would have had to find a way to embrace federal as well as state law, statutory as well as decisional law, and state as well as federal courts. The Court would have had to press Erie's positivism further to identify the sources of lawmaking power. And it would have had to address the general problem of allocating lawmaking power, not only within a state, but among the states, and between state and nation. Ideally, a truly general theory would have seen the relation of power to rights. Having stopped short of any of this, Erie can offer only a useful point of departure.

Ironically, by 1938, when Erie was decided, the time was ripe for better theory. Cases in the Hughes Court on the conflict of laws, federalism, and constitutional analysis (5) were evolving in tandem to a point at which more comprehensive and powerful theory lay ready to hand.

This Article points to a simple but general way of understanding the sources and allocation of lawmaking power in the United States, one that takes hold, more completely and satisfyingly, of the massive positivistic transformation in American law that is Erie's signal achievement. It argues that the teachings of Erie might well be reconceived, freeing them from Erie's confines and recognizing Erie as a reflection of due process. As such, Erie can be read in a generalized way as holding that the law applied in all courts on any issue must be the law of a sovereign with a legitimate interest in governing the particular issue on the particular facts. The general unifying theory proposed here is best understood, then, as flowing from the Due Process Clauses, with their attendant interestanalytic, purposive methodology. Lawyers and judges are already substantially guided, consciously or not, by the systemic understandings of which Erie is a partial reflection.

Beyond this, the Supreme Court's more substantive constitutional cases are similarly informed by interest-analytic reasoning--not only on the scope of government power and its intrinsic limits but also on the scope of individual rights, which are the extrinsic limits of power. Just as the Fourteenth Amendment's Due Process Clause controls irrational state choices of law, (6) it controls irrational state law and arbitrary official state action. (7) The Fifth Amendment's Due Process Clause has substantially similar significance for constitutional control of federal laws and acts. (8)

2. A GENERAL THEORY OF GOVERNMENTAL POWER

   The presumptive authority of government to act, in any of its branches, should require only a showing of legitimate governmental interest. At least since the late 1930s, the sovereign's legitimate governmental interest--rational, important, or compelling--or, at least, its general sphere of interest, (9) is what sustains an exercise of governmental authority. The reader may recognize this sort of interest-analytic purposive reasoning as characteristic of modern due process theory.

   1. The Curious Dawning of Modern Due Process Theory (10)

      As it happens, by 1938, when Erie was handed down, due process as grounding a general theory of governmental power was ripe for deployment. Justice Brandeis could easily have given us more general theory than he delivered in Erie. Brandeis was author of the opinion in the 1930 case of Home Insurance Co. v. Dick, (11) the first due process case to control a choice of law without reference to Lochner v. New York's "liberty of contract," (12) without reference to full faith and credit, and without specific reference to the concept of extraterritoriality. Dick was perhaps the first case of constitutional magnitude requiring only that law be chosen reasonably--that is, that the law chosen have substantial relevance to the issue in dispute on the particular facts.

      Dick, a workaday insurance case, utterly unfamiliar to constitutional commentators, (13) is considered the foundation of modern conflicts theory, (14) the forts et origo of governmental interest analysis in the conflict of laws. (15) Dick is read today as establishing that it is unconstitutional for a state without an interest in governing an issue to attempt to govern it. In Dick, Justice Brandeis took the unexceptionable but then novel position that it cannot be due process for a state without any connection with a case to govern it. (16) After Dick, the law applied in courts on any issue must be the law of a relevant lawgiver with a significant interest in governing that issue on the facts (17) of the case.

      This thinking is very similar to the thinking in Erie. In Dick, the Texas courts in a Mexican case disregarded the law of the only relevant sovereign, Mexico, to apply their own irrelevant law. (18) In Erie, federal judges in state-law cases were disregarding the law of the only relevant sovereign, the state, to apply their own irrelevant opinions. (19) Although in Dick Justice Brandeis deployed Fourteenth Amendment due process to strike down irrelevant law, in Erie he missed the opportunity to deploy Fifth Amendment due process to strike down irrelevant law.

   2. Erie: A Circular and Unconvincing Rationale

      Commentators often ignore Justice Brandeis's constitutional argument in Erie because, as Professor Urofsky has remarked, they simply do not understand it. (20) Perhaps this is because Justice Brandeis's reasoning in Erie can seem circular to current readers--although it may not have been circular at the time. (21) To lawyers in our time it is almost a truism to say that if Congress cannot do a thing it is unconstitutional. That is, if Congress cannot do it, it is beyond national power altogether. In Erie, Justice Brandeis explained that federal courts were displacing state law without any identifiable sovereign interest in doing so, a thing Congress "confessedly" could not do. (22) The "course pursued" (23)--what federal courts were doing before Erie--was unconstitutional because Congress could not do it. But to a modern reader, he can seem to be saying that the "course...