POST.DOC 05/17/02 4:44 PM FEDERALISM IN THE TAFT COURT ERA: CAN IT BE “REVIVED”? ROBERT POST† ABSTRACT This Article analyzes the Supreme Court’s view of federalism during the decade of the 1920s. It offers a detailed discussion of four jurisprudential areas: congressional power, dormant Commerce Clause doctrine, intergovernmental tax immunity, and judicial cen- tralization through the enforcement of federal common law and con- stitutional rights. The resurgent federalism of the contemporary Court is typically characterized as “reviving” pre–New Deal principles. This Article concludes, however, that any such revival is highly implausi- ble. It offers four reasons for this conclusion. First, the pre–New Deal Court conceived federalism in terms of the ideal of dual sovereignty, which imagined that the federal government and the states regulated distinct and exclusive spheres of social and economic life. But because the national market had by the twentieth century become thoroughly integrated, this ideal produced doctrinal incoherence in the areas of both intergovernmental tax immunity and the dormant Commerce Clause. The application of the ideal of dual sovereignty also significantly undercut state power, because it invited the pre–New Deal Court to prohibit states from regulating the exclu- sively federal area of interstate commerce. For these reasons the mod- ern Court has abandoned the ideal of dual sovereignty in its doctrine of intergovernmental tax immunity and the dormant Commerce Clause. Contemporary opinions in these areas imagine federal and state interests as intermingled and overlapping, rather than as sepa- Copyright © 2002 by Robert Post. † Alexander F. and May T. Morrison Professor of Law, School of Law (Boalt Hall), Uni- versity of California at Berkeley. This Article was presented as the 2001 Brainerd Currie Lec- ture at Duke University School of Law on March 26, 2001. Many of the sources cited within were obtained by the author from archival records. The Duke Law Journal was thus unable to independently verify this authority. Unless otherwise noted, these sources are on file with the author. POST.DOC 05/17/02 4:44 PM 1514 DUKE LAW JOURNAL [Vol. 51:1513 rated into discrete spheres. The modern view actually offers more protection for state regulations than did the ideal of dual sovereignty espoused by the pre–New Deal Court. Second, the pre–New Deal Court understood itself as a common law court authorized to articulate the deepest experiences and values of the American people. This authority transcended the distinction between federal and state power, which is why the pre–New Deal Court never conceived itself as an agent of a federal government that was potentially in tension with state sovereignty. The Court never un- derstood the centralization resulting from judicial decisionmaking as a federalism issue. The Court freely regulated intimate areas of state life through the promulgation of general common law. The pre–New Deal Court’s common law authority was regarded as even more fun- damental than Congress’s claim to articulate the national will. The triumph of Holmesian positivism in Erie Railroad Co. v. Tompkins transformed the Court into an instrument of specifically federal law. The federalism implications of judicial decisionmaking in the areas of common law and constitutional rights were thus made manifest for the first time. The Court’s authority to impose structural limitations on congressional power was also profoundly altered. Third, the pre–New Deal Court, like the country generally, re- garded the federal government as a potentially distant, bureaucratic, and oppressive institution. States were by contrast conceptualized as sites of democratic self-government. Federalism was typically con- ceived as the problem of “reconciling centralization with self- government.” Thus federal and state regulations, even of the same subject matter, were not regarded as equivalent. State regulation was self-chosen; federal regulation was potentially coercive. This view of the federal government was pushed to the margins of American politi- cal culture when the crisis of the New Deal legitimated the national government’s authority to speak as the genuine representative of an authentic national democratic will. Combined with the demise of the Court’s common law authority, this transformation of Congress’s le- gitimacy undercut the Court’s ability to second-guess Congress’s vi- sion of national priorities when reviewing the limits of congressional power. Fourth, the pre–New Deal Court conceived structure and rights as complementary and mutually dependent concepts. The Court defined individual rights in ways designed to serve structural principles, like the integration of the national market. And it defined structural prin- ciples, like the limits of congressional power, in terms of the individ- POST.DOC 05/17/02 4:44 PM 2002] FEDERALISM IN THE TAFT COURT ERA 1515 ual rights affected by federal legislation. Because the Lochnerism of the pre–New Deal Court inclined it to protect freedom of contract, it sought to impose limits on congressional power that were highly sen- sitive to the nature of the economic transactions regulated by federal legislation. Modern constitutional thinking, by contrast, sharply dis- tinguishes structure from rights, and it does not seek to protect the same kind of economic rights as did pre–New Deal Lochnerism. The “revival” of pre–New Deal federalism, in short, would require the contemporary Court to restore an ideal of dual sovereignty that in important doctrinal areas is not only incoherent, but deeply antago- nistic to state power; to reassert its authority as a common law court; to resurrect an image of Congress as a national legislature unsup- ported by a genuine national democratic will; and to dismantle the contemporary distinction between structure and rights so as to limit congressional power in ways designed to protect rights of substantive due process. TABLE OF CONTENTS Introduction...........................................................................................1516 I. Federalism and the Impact of World War I: National Centralization and National Ambivalence..............................1519 II. Dual Sovereignty and the Doctrine of Intergovernmental Tax Immunity .............................................................................1526 III. Federalism and the Scope of Congressional Power ...............1537 A. Congressional Power and the Commerce Clause ...........1546 B. Congressional Power and the Logic of Dual Sovereignty ..........................................................................1558 1. Dual Sovereignty and the Form of Congressional Power..............................................................................1562 2. Dual Sovereignty and the Substance of Congressional Legislation............................................1568 C. Dual Sovereignty and the Role of the Court...................1576 IV. Federalism and National Judicial Power.................................1580 A. National Judicial Power, Structure, and Individual Constitutional Rights..........................................................1580 B. Federal Common Law and Judicial Centralization ........1589 POST.DOC 05/17/02 4:44 PM 1516 DUKE LAW JOURNAL [Vol. 51:1513 V. Federalism and the Dormant Commerce Clause ...................1605 A. The Dormant Commerce Clause and Dual Sovereignty ..........................................................................1606 B. Dual Sovereignty and the Boundary Between Interstate and Intrastate Commerce.................................1613 C. Direct and Indirect Burdens on Interstate Commerce............................................................................1618 D. The Dormant Commerce Clause and Economic Rights ...................................................................................1630 Concluding Thoughts ...........................................................................1634 INTRODUCTION After decades of dormancy, federalism has once again become a controversial and consequential constitutional issue. Led by a Su- preme Court whose “activism” is said to be directed at “reviving the structural guarantees of dual sovereignty,”1 the current resurgence of federalism is characterized by the metaphor of resurrection.2 The pressing question seems to be whether the contemporary Court ought to resuscitate limitations on federal power that have remained quies- cent since before the New Deal. If modern questions of federalism are to be understood as a re- vival of past understandings, however, it would be useful to explore the actual nature of those understandings. A good place to begin is 1. Brzonkala v. Va. Polytechnic Inst. & State Univ., 169 F.3d 820, 893 (4th Cir. 1999) (en banc) (Wilkinson, C.J., concurring), aff’d sub nom. United States v. Morrison, 529 U.S. 598 (2000). 2. See Jeffrey Rosen, Getting over Our Depression, N.Y. TIMES, Mar. 11, 2001, at 16 (re- viewing G. EDWARD WHITE, THE CONSTITUTION AND THE NEW DEAL (2001)): [D]uring the past six years, the court has struck down all or part of more than two dozen federal laws, on the grounds that Congress or the president had encroached on states’ rights or the separation of powers. The next four years could see a redefinition of the scope of federal power through the resurrection of an aggressive role for judges in policing boundaries of national government that had been dormant since the 1930’s. Whether you think this is a principled exercise in constitutional