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Tire Constitution's Forgotten Cover Letter: an Essay on the New Federalism and the Original Understanding

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Tire Constitution's Forgotten Cover Letter: an Essay on the New Federalism and the Original Understanding TIRE CONSTITUTION'S FORGOTTEN COVER LETTER: AN ESSAY ON THE NEW FEDERALISM AND THE ORIGINAL UNDERSTANDING Daniel A. Farber* I. INTRODUCrION 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.' 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 con- tains 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 * Acting Associate Vice-President for Academic Affairs, Associate Dean for Faculty Re- search and Development, and Henry J. Fletcher Professor of Law, University of Minnesota. B.A. 1971, M.A. 1972, J.D. 1975, Illinois. - Ed. I would like to thank Jim Chen, Phil Frickey, Mark Killenbeck, Mike Paulsen, Jeff Powell, and Suzanna Sherry for their helpful comments. 1. See Letter of the President of the Federal Convention to the President of Congress (Sept. 17, 1787), in FORMATION OF Tm UNION OF mrm AMmcAN STATES 1003 (Charles C. Tansili ed., 1927). A complete copy of the letter can be found in the Appendix to this essay. 2. See Resolution of Congress of September 28, 1787, Submitting the Constitution to the Several States, in FORMATION OF Tm UNION, supra note 1, at 1007. 3. Except where the context makes it important to draw a distinction, this essay uses the term Framers to refer to both the Philadelphia Convention and the ratifiers. HeinOnline -- 94 Mich. L. Rev. 615 1995-1996 Michigan Law Review [Vol. 94:615 principles" of federalism.4 On one of these occasions, departing from almost sixty years of past practice, the Court ruled that Con- gress 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," ac- cording 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 princi- ples" are congruent with the views of those who framed the Consti- tution. 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 Conven- tion'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 un- official views of two prominent delegates.8 Further, because it seems to have been regarded as noncontroversial, both in the Con- vention 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 II 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 II traces this develop- ment. Part III then considers the significance of the Washington letter in more detail. As Part III explains, recent conservative writ- ings about interpretation provide strong reasons to reassess the traditional obscurity of the Washington letter. With these pre- liminaries out of the way, Part IV uses the Washington letter to 4. See United States Term Limits, Inc. v. Thornton, 115 S. Ct. 1842, 1875 (1995) (Thomas, J., joined by Rehnquist, C.J., O'Connor, J., and Scalia, J., dissenting); United States v. Lopez, 115 S. Ct. 1624, 1626 (1995). 5. See Lopez, 115 S. Ct. at 1653 (Souter, J., dissenting). 6. See Term Limits, 115 S. Ct. at 1875. 7. See 115 S. Ct. at 1876 n.1. 8. With the minor exception of the handful of Federalist Papers authored by John Jay. HeinOnline -- 94 Mich. L. Rev. 616 1995-1996 December 1995] Constitution's Cover Letter probe three elements of the New Federalism: its understanding of the scope of national power; its concept of sovereignty; and its vi- sion 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 his- torians 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 sub- stantial 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 constru- ing the specific bequests. In approaching this question, it is helpful to understand the overall "estate plan," which in this case is clari- fied to some degree by the Washington letter, as well as the place of the residuary legatees in the testator's affections. 9. See infra text accompanying notes 64-69. 10. I wish to emphasize that this essay is critical rather than synthetic. That is, it sets forth counterarguments to the arguments made by the New Federalists and attempts to show that their arguments are unpersuasive. But even assuming that the essay successfully makes its case, that does not establish that the conclusions drawn by the New Federalists are incor- rect, only that they are poorly supported. HeinOnline -- 94 Mich. L. Rev. 617 1995-1996 Michigan Law Review [Vol. 94:615 II. THE NEw FEDERALISM A. 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," which, like Lopez, was au- thored by Chief Justice Rehnquist. With Justice Blackmun provid- ing 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."' 2 In Hodel v. Virginia Surface Mining & ReclamationAssn.,' 3 the Court articulated a three-part test based on League of Cities, which it then applied to uphold federal regula- tion 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 'attri- bute[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.' 5 The Hodel test, in practice, proved fatal to state claims of immu- nity. 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.' 6 Then, the Court narrowly upheld a federal statute requiring state utility commissions to consider certain meth- ods of energy conservation. 17 Finally, a closely divided Court up- held the application to state park employees of a federal ban on compulsory retirement.' 8 11. 426 U.S. 833 (1976). 12. 426 U.S.
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