Nullification via Dual Federalism A Second Response to Professor Gillman

• Author: Wallace Mendelson
• DOI: 10.1177/106591299604900210
• Published date: 01 June 1996
• Date: 01 June 1996
• Subject Matter: Articles

Nullification via Dual Federalism
A
Second Response to Professor
Gillman
WALLACE MENDELSON, UNIVERSITY OF TEXAS
"Marshall indicated [in Gibbons
]
that in his view, congressional power to
regulate ’commercial intercourse’ extended to all activity having any in-
terstate impact-however indirect." Lawrence R Tribe
Law too must adapt or perish. It must balance its old values against the per-
ceived needs of the present and the future. Too much respect for the past
brings stagnation; too little brings chaos. &dquo;Original intent&dquo; invites the one; its
counterpart, &dquo;non-interpretation,&dquo; invites the other. Yet each has truth by the
tail-constitutional law &dquo;must be stable, but it must not stand still.&dquo; The solu-
tion, I think is the cautious, incrementalism of the common-law approach.
Holmes spoke of it as an evolving continuum that gradually sloughs off the
outmoded at one end and embraces new needs at the other. Professor Gillman
on
the other hand is something of an originalist-striving, as he does, to justify
Knight in terms of Marshall’s original intent. Maybe he is trying too hard to
prove (in defense of the Warren Court?) that by allegedly fathering dual feder-
alism, Marshall fathered the judicial activism that broke out in the 1890s and
again in the Warren era. In any event, originalism became a moot issue with
respect to the commerce power for more than half a century after the Court
crisis of 1935-36. In effect parliamentary supremacy prevailed. Then in Lopez
(1995) the Rehnquist Court reinstated judicial supremacy and the spirit of
Dagenhart. None of the justices tried to resurrect dual federalism!
The issue my initial essay raises is simply this: &dquo;Was John Marshall impli-
cated [in Knight]?&dquo; I suggested he was not-that dual federalism, the doctrine
on which Knight turns, was a concoction of the plantation South to thwart
Marshall’s and the Founder’s well-known nationalism. I suggested further that
this concoction was part of the &dquo;lost cause&dquo;-until the 1890s when business
lawyers adopted it for their own anti-federal-regulation purposes. The result
was Knight.
Professor Gillman finds this scenario at best flawed. To tie Marshall to
dual federalism, he cites McCulloch, Gibbons, Brown, and Black Bird. To bridge
439

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the generations from Marshall to Knight he cites Daniel Ball, DeWitt, Trade
Mark, Veazie, and Kidd. Not one of these nine cases is a precedent for Knight,
since not one invalidates a federal act on Tenth Amendment grounds. Five of
them reject dual federalism by sponsoring federal authority at state expense; in four
of the five Marshall spoke for the Court. These are the cases in which Professor
Gillman finds him soft on dual federalism!
Of the remaining four cases, Kidd and Veazie do not even involve federal
acts. In DeWitt (1870) the Court caught up with Professor Gillman. The deci-
sion was quite tame: Congress cannot regulate a purely local transaction. Talk-
wise, however, it broke with Marshall and toyed with Knight ideology. Trade
Mark nine years later was a replay of DeWitt. These are the only pre-1895
cases testing the validity of congressional acts that talk dual federalism-they
do not act upon it. Instead of linking the past and the future, as Professor
Gillman would have it, they break with the past, particularly with Marshall.
For him,...