The Constitution's forgotten cover letter: an essay on the new federalism and the original understanding.

• Author: Farber, Daniel A.
• Position: Reflections on United States v. Lopez

1. Introduction

At the end of the summer of 1787, the Philadelphia Convention issued two documents. One was the Constitution itself. The other document, now almost forgotten even by constitutional historians, was an official letter to Congress, signed by George Washington on behalf of the Convention.(1) Congress responded with a resolution that the Constitution and "letter accompanying the same" be sent to the state legislatures for submission to conventions in each state.(2)

The Washington letter lacks the detail and depth of some other evidence of original intent. Being a cover letter, it was designed only to introduce the accompanying document rather than to plumb its meaning. But the letter's official nature gives it a status not shared by Madison's personal notes or newspaper editorials such as the Federalist Papers. As we will see, the Washington letter contains significant clues about the nature of the document that the Convention was placing before the country. Although it cannot supplant other, more traditional sources, it can help to illuminate the original understanding of the Framers.(3)

Recourse to this source is particularly appropriate now, in a year when we have twice been admonished to return to the "first principles" of federalism.(4) On one of these occasions, departing from almost sixty years of past practice, the Court ruled that Congress had exceeded its power to regulate private activity under the Commerce Clause.(5) In the other case, only the defection of Justice Kennedy prevented the same block of Justices from holding that ultimate sovereignty lies in the people of the individual states, rather than in a single national populace.(6) "We, the People," according to these Justices, means "we the peoples of the various states," rather than "We the American people."(7)

It is only fair to consider the extent to which these "first principles" are congruent with the views of those who framed the Constitution. But the multitude of available sources, many of them conflicting, ambiguous, or unreliable, complicates this inquiry. The Convention's cover letter provides useful assistance because of its official standing as the unanimous public expression of the Convention's views. In this respect, it compares quite favorably with Madison's notes, which were not available to the public until many years later, and with the Federalist Papers, which presented the unofficial views of two prominent delegates.(8) Further, because it seems to have been regarded as noncontroversial, both in the Convention and elsewhere, it may help illuminate the most important of understandings -- those that were considered too clear to require discussion.

This essay uses the Washington letter to test current assertions about the original understanding of federalism. Part Il of the essay explores the New Federalism -- the emerging conservative theory of federalism. Although the New Federalism had its most dramatic impact in Lopez and its most radical expression in the Term Limits dissent, it began in a series of earlier opinions and in the work of conservative constitutional theorists. Part Il traces this development. Part III then considers the significance of the Washington letter in more detail. As Part III explains, recent conservative writings about interpretation provide strong reasons to reassess the traditional obscurity of the Washington letter. With these preliminaries out of the way, Part IV uses the Washington letter to probe three elements of the New Federalism: its understanding of the scope of national power; its concept of sovereignty; and its vision of the states as safeguards against the federal government. Part V contains some brief closing thoughts about the Washington letter and the New Federalism.

In general, the Washington letter supports the arguments of historians who have attributed a more nationalist spirit to the Framers than that contemplated by the New Federalists.(9) To the extent that their goal is to keep faith with the spirit of the Framers, the New Federalists seem to have struck a somewhat dissonant chord. If the burden of proof is on the New Federalists to justify a change in current law, they have failed to carry that burden.(10)

It is important to bear in mind the limited extent of the current dispute over federalism. The Constitution undeniably contemplates the existence of the states as important elements of the structure of government. The federal government clearly was the recipient of enumerated powers, and any remaining powers of government were reserved to the states. But the question is how to construe that reservation to the states.

We might analogize the reserved powers of the state to the share of a residuary legatee in a will. On the one hand, the Framers may have thought it critically important that the states retain substantial regulatory autonomy. If so, courts have reason to construe the specific bequests so as to maintain a substantial residue. That is the New Federalist view. Or perhaps the states were more like a charity chosen for tax purposes to inherit the residue of the estate -- here, that being whatever powers happened to be left over or whatever authority Congress chose not to exercise. Although the Framers may have expected the residuary bequest to be large, maintaining its size may not have been an important goal of their constitutional testament. If so, it should play little role in construing the specific bequests. In approaching this question, it is helpful to understand the overall "estate plan," which in this case is clarified to some degree by the Washington letter, as well as the place of the residuary legatees in the testator's affections.

2. THE NEW FEDERALISM

   1. The Origins of the New Federalism

      The New Federalism did not emerge full-grown in the 1994 Term. Instead, it was an outgrowth of conservative jurists' and scholars' continuing concern over federal invasions of state prerogatives.

      This concern surfaced dramatically two decades before Lopez in National League of Cities v. Usery,(11) which, like Lopez, was authored by Chief Justice Rehnquist. With Justice Blackmun providing the somewhat unenthusiastic fifth vote, Justice Rehnquist held that applying the federal minimum wage to certain state employees unconstitutionally invaded the "attributes of sovereignty attaching to every state government."(12) In Hodel v. Virginia Surface Mining Reclamation Assn.,(13) the Court articulated a three-part test based on League of Cities, which it then applied to uphold federal regulation of strip mining. According to Hodel, to be struck down for exceeding congressional power, a statute must regulate the "States as States," it must "address matters that are indisputably `attribute[s] of state sovereignty,' " and it must directly impair " 'integral operations in areas of traditional governmental functions.' "(14) Note the emergence of two themes of the New Federalism: reverence toward state sovereignty and protectiveness toward traditional state functions.(15)

      The Hodel test, in practice, proved fatal to state claims of immunity. Following Hodel, the Court unanimously held that federal regulation of state-owned railroads "does not impair a state's ability to function as a state."(16) Then, the Court narrowly upheld a federal statute requiring state utility commissions to consider certain methods of energy conservation.(17) Finally, a closely divided Court upheld the application to state park employees of a federal ban on compulsory retirement.(18)

      Ultimately -- to complete this oft-told story -- Justice Blackmun thought better of his vote in League of Cities and wrote the majority opinion in Garcia v. San Antonio Metropolitan Transit Authority,(19) which overruled League of Cities. The thrust of the Garcia opinion is that the Constitution indeed does presume the existence of independently functioning state governments but that the primary safeguard against federal interference is structural.(20)

      Justice O'Connor's dissent in Garcia broached a theme that was to figure heavily in later New Federalist opinions. She argued that the Framers viewed the commerce power as "important but limited, and expected that it would be used primarily if not exclusively to remove interstate tariffs and to regulate maritime affairs and large-scale mercantile enterprise."(21) To protect the basic federal scheme in an era when interstate commerce has mushroomed, Justice O'Connor suggested, the Court needed to defend at least the internal operations of the state government from federal regulation.

      Commentators generally assumed, as Justice O'Connor had, the validity of the general expansion of federal legislative power. The problem was to protect the independent policymaking role of the states in a world in which the threat of federal preemption was, by common agreement, virtually omnipresent.(22) Among other possibilities, the Guarantee Clause was invoked as a basis for this process-based protection for states' rights.(23)

      Despite League of Cities and the Garcia dissent, states' rights had not been a particularly prominent part of conservative jurisprudence. No less a conservative than Robert Bork had represented the federal government in League of Cities.(24) Even in 1982, such prominent conservatives as Charles Fried and Antonin Scalia were notably unenthusiastic about states' rights.25 Fried suggested that the seeds of the current federal dominance may have been present from the beginning,(26) while Scalia's peroration took an unabashedly nationalist stand: "I urge you, then -- as Hamilton would have urged you -- to keep in mind that the federal government is not bad but good. The trick is to use it wisely."(27)

      In the late 1980s, however, some conservative theorists began to take a more vigorous stance in defense of the states. Raoul Berger continued his campaign for unadulterated originalism with a book on federalism.(28) Berger's book anticipates the later...