Volume 2
Summer 2008
Andrew Jackson and Presidential Power
Lincoln’s Constitution
Number 3
John Yoo
Walter F. Murphy
Administrative Preemption in Areas of Traditional
State Authority
Lisa Kinney Helvin
Damned Yankees: Restrictive Covenants that
Discriminate Against Geographic Origin
Lindsay E. Leonard
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ANDREW JACKSON AND PRESIDENTIAL
POWER
John Yoo*
I. INTRODUCTION......................................................................521
II. THE INVASION OF FLORIDA ..............................................526
III. THE BANK WAR ...................................................................536
IV. THE TARIFF ..........................................................................562
V. CONCLUSIONS.......................................................................573
I. INTRODUCTION
While Andrew Jackson laid the foundations for what we can
begin to recognize as the modern presidency, he would have been
out of place in the modern world. He fought duels, owned slaves,
and killed Indians (as well as British spies). He carried a lifelong
hatred of Great Britain because, as a captured boy soldier during
the Revolutionary War, he was struck in the face with a sword
for refusing to clean a British officer’s boots. During the War of
1812, he won a resounding victory over the British at the Battle
of New Orleans. During the peace, Jackson invaded and
occupied Spanish Florida without clear orders. His views on
slavery and on Indians would be deemed more than just
politically incorrect today. When he lost the election of 1824
despite winning the most votes, Jackson did not graciously
withdraw but spent the next four years attacking the “corrupt
bargain” that had thrown the Presidency to John Quincy Adams.1
* Professor of Law, University of California at Berkeley School of Law
Boalt Hall); Visiting Scholar, American Enterprise Institute. I thank Jesse
Choper, Robert Delahunty, Sai Prakash, and Gary Schmitt for their comments.
Claire Yan provided excellent research assistance.
1. I have drawn on the wealth of Jackson histories in writing this Article.
Jackson’s larger than life personality has made him the subject of several
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Upon winning the election of 1828, Jackson embarked on a
transformation of the political system and the Presidency. He
sought to advance the cause of democracy, and made an
expanded executive power his tool in that great project. To
Jackson, democracy meant that the will of the majority should
prevail, regardless of existing governmental and social
arrangements. Even Jefferson had not gone that far. The
Framers designed a government to check and balance majority
rule with the Senate, the Electoral College, and an independent
judiciary. Jackson followed a different star. “[T]he first principle
of our system,” Jackson declared in his State of the Union
Address, is “that the majority is to govern.”2 He called for a
constitutional amendment to eliminate the Electoral College
because “[t]o the people belongs the right of electing their Chief
Magistrate.”3 The more elected representatives there were, he
observed, the more likely the popular will would be frustrated.4
Jackson remains one of the greatest Presidents because he
reconstructed the office into the direct representative of the
American people.5
It does not take a political genius to discover how Jackson
excellent works. Our generation’s leading Jackson biographer, Robert V.
Remini, provides great detail on Jackson’s life in three volumes. ROBERT V.
REMINI, ANDREW JACKSON (1977-84) [hereinafter REMINI, JACKSON]. Other
helpful works include GERARD N. MAGLIOCCA, ANDREW JACKSON AND THE
CONSTITUTION: THE RISE AND FALL OF GENERATIONAL REGIMES (2007); H.W.
BRANDS, ANDREW JACKSON: HIS LIFE AND TIMES (2006); SEAN WILENTZ, ANDREW
JACKSON (2005); DONALD B. COLE, THE PRESIDENCY OF ANDREW JACKSON (1993).
Our leading history of the Jackson period is DANIEL WALKER HOWE, WHAT HATH
GOD WROUGHT: THE TRANSFORMATION OF AMERICA 1815-1848 (2007). Older
works, such as ARTHUR M. SCHLESINGER, JR., THE AGE OF JACKSON (1945), are
less helpful in portraying Jackson as a proto-FDR and Jacksonian Democracy
as a precursor for the New Deal.
2. Andrew Jackson, First Annual Message to Congress (Dec. 8, 1829), in 2
MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1897, at 448 (James D.
Richardson ed., 1896) [hereinafter Jackson, First Annual Message to Congress].
3. Id. at 447.
4. Id.
5. See Robert V. Remini, The Constitution and the Presidencies: The
Jackson Era, in THE CONSTITUTION AND THE AMERICAN PRESIDENCY 29 (Martin
L. Fausold & Alan Shank eds., 1991).
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arrived at this view. In the election of 1824, Jackson believed he
was the people’s choice. He received a plurality of the popular
vote, 153,000 out of 361,000, and of the electoral vote, 99 out of
the 131 needed to win. The Constitution threw the election into
the House of Representatives, where Henry Clay, who had come
in fourth, was Speaker of the House. Clay influenced the House
to choose John Quincy Adams, who had received eighty-four
electoral votes. Adams picked Clay to be Secretary of State, the
position then seen as the stepping-stone to the Presidency.
Jackson devoted the next four years to attacking the corruption
of the political system, and successfully undermined the
legitimacy of the Adams Administration. He became the symbol
of a rising democracy, which he promoted once he became
President.
The two causes—democratization and expanding the
Presidency—were linked, though they need not have been.
Democracy was on the rise before Jackson reached office. By the
election of 1824, all but three states had granted the franchise to
all white adult males. Most state governors, judges, and officials
were elected. While large segments of the population could not
vote, such as women and minorities, the United States had
achieved a high level of democracy for its time. The workings of
the Electoral College would not stand long in the way of majority
rule.
The Presidency, by contrast, had declined sharply since
Jefferson.
Beginning with James Madison in 1808, the
Republican members of Congress selected their party’s
presidential nominee. When the Federalists disappeared after
the end of the War of 1812, “King Caucus” effectively selected the
nation’s President—the very result the Framers’ wanted to avoid
by creating the Electoral College. Cabinet agencies and their
secretaries felt the pull of competing allegiances with the
emergence of congressional committees during this period. It
became more common for cabinet members to pursue their own
agendas, in cooperation with Congress, and for presidents to see
themselves more as prime ministers holding together a coalition.
Presidential weakness was displayed in the two great
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challenges of this “Era of Good Feelings.” The dominant issue of
the early republic, the struggle for dominance between Britain
and France, ended when Congress declared war on Britain in
1812. A more dangerous war could not have been risked.
America took on the only country with a navy that could actually
project force against the East Coast. Congress had continued
Jefferson’s program of slashing defense spending, leaving the
nation without any trained navy or army, while attempting to
coerce Britain and France to accept free trade. Incompetent
commanders led an invasion of Canada, which failed miserably
(to the long-run benefit of both nations). Troops paid for by the
private sector fled at the sight of the British army outside
Washington, D.C. The nation’s capital was captured and burned
to the ground. The fleeing President and his family rode
unescorted through the Virginia countryside. New England met
in convention to consider secession and Massachusetts even sent
out independent peace feelers. Had peace not broken out in
Europe, Great Britain might well have finished off the United
States on the battlefield and perhaps succeeded in splitting New
England from the rest of the country. Madison’s conception of a
small Presidency led him to accept congressional initiative in war
and national security, first by allowing Congress to force the
nation into war, then by allowing Congress to wage it on the
cheap. Starting the war was primarily Congress’s fault, but
Madison shared in the blame by not stopping it.
The other great antebellum issue was slavery. The Louisiana
Purchase meant that slavery remained at the forefront of
American politics. Jackson’s victory at New Orleans guaranteed
that American expansion would continue without interference
from Great Britain. Adding territory called upon the national
government to decide whether to permit slavery in the new
territories. North and South played a delicate balancing game
over the admission of new states. Here again, Presidents were
noticeable for their absence.
President Monroe played no
significant role in setting a national agenda for solving the
slavery question. Instead, leaders in Congress took the initiative
in the 1820 Missouri Compromise, which prohibited slavery in
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the Louisiana Territory north of Missouri. In Congress, the
Great Triumvirate of Clay, Daniel Webster, and John Calhoun
exercised commanding leadership over the Republican Party.
Presidents like Madison, Monroe, and Adams, who owed their
nominations to the congressional caucus, had little political
leverage to influence the slavery debate.
As presidential power came into doubt, so too did the
authority of the national government.
Signs of regional
separatism had first begun to emerge during Jefferson’s embargo
and Madison’s War.
Although the disappearance of the
Federalists led to a single dominant political party, regional
divisions occurred over tariff levels on imports and federal
support for “internal improvements,” such as roads and canals.
The South, for example, exported raw materials and agricultural
products for income and imported finished goods; high tariffs
appeared to benefit Northern manufacturers while raising the
South’s costs. Internal improvements, which included the Erie
Canal and interstate roads, created a different set of regional
alliances between westerners who favored its benefits for
expansion and Eastern States that benefited from increasing
economic links with the West.
Slavery exacerbated these
centrifugal forces, as did increasing democratization, which broke
down traditional social and political hierarchies.
Jackson swam against both tides. He reinvigorated the
Presidency and is generally considered by historians to have been
one of the nation’s most vigorous and powerful chief executives.
He advanced a new vision of the President as the direct
representative of the people. Jackson put theory into practice
with the vigorous exercise of his executive powers—interpreting
the Constitution and enforcing the law independently, wielding
the veto power for policy as well as constitutional reasons, and
re-establishing control over the executive branch. In the first of
two great political conflicts of his time, the Bank War, Jackson
vetoed a law that the Supreme Court and Congress both thought
constitutional, removed federal deposits from the Bank, and fired
cabinet secretaries who would not carry out his orders. In the
second, the Nullification Crisis, Jackson again interpreted the
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nature of the Constitution and the Union on behalf of the people,
and made clear his authority to carry out federal law, even
against resisting states. Although he was a staunch defender of
limited government, Jackson would confront head-on the forces
seeking a weaker union or a weaker Executive. His achievement
would be to restore and expand the Presidency, within the
context of a permanent Union. He would also spark resistance so
strong that it would coalesce into a new political party, the Whig
party, devoted to opposing concentrated executive power.
II. THE INVASION OF FLORIDA
An enduring image of Andrew Jackson is the cartoon of “King
Andrew the First,” as his critics called him, sitting on a throne
after his veto of the Bank.6 His war against the Bank, waged
using the veto and removal powers, produced more than
caricatures. Both his critics and his supporters realized that
Jackson was exercising the powers of the Presidency in
unprecedented ways. It led to congressional investigations,
legislative proposals to rein in the Executive—even the censure
of President Jackson by the Senate.
Jackson, however,
persevered and eventually prevailed.
He similarly turned
presidential powers to new directions when he overcame South
Carolina’s threats to nullify federal tariff laws. Throughout,
Jackson’s belief that he represented the will of the majority
infused his conduct of the office of President. He re-energized the
Presidency by marrying its constitutional powers to a theory of
the Executive as the focal point for national majority rule, a role
that was not obvious, to say the least, from the constitutional
text.
Jackson’s attitude became clear even before he won the job of
chief executive. As a military general, Jackson was not above
interpreting his orders loosely and certainly did not think he had
to wait on congressional approval before taking offensive military
action. In the wake of the War of 1812, Jackson concluded that
6. See Remini, supra note 5, at 35.
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the Spanish had to be expelled from the Southwest in order for
American expansion to occur without hindrance.7 The first step
in his strategy was to eliminate any possibility of an Indian
buffer zone between the United States and Spain. After some
initial setbacks, Jackson defeated several Creek Indian tribes
that had allied with the British during the War—it was in these
battles that Jackson won the nickname “Old Hickory.” During
the peace, Jackson refused to follow the provisions of the Treaty
of Ghent that did not recognize his victories. Instead he made
several agreements and treaties with the tribes to remove them
from the area of the Louisiana Purchase to lands on the western
frontier. In about sixteen months Jackson acquired about onethird of Tennessee, three-fourths of Florida and Alabama, onefifth of Georgia and Mississippi, and about one-tenth of Kentucky
and North Carolina. Jackson made no secret of his desire to
drive the Spanish out of Florida, Texas, and even Mexico.8
The Treaty of Ghent and several U.S.-British treaties after
the war formalized an implicit understanding between the
mother country and her former colony. Great Britain would no
longer oppose American expansion into the South and West. In
return, the United States demilitarized the northern frontier and
gave up any ambitions toward Canada, which had held American
attentions since the days of the Revolution. This left Spain in an
untenable position in Florida, where it had few military and
administrative resources. Americans had wanted Florida since
the days of Jefferson, if not before. Congress, however, never
authorized any military action against the Spanish. Under
prevailing practice at the time, a full offensive mission of
conquest would have called for a declaration of war.
Seminole Indian attacks on American territory in 1817
supplied Jackson with a pretext. The Seminoles had operated
out of Spanish Florida and also had refused to vacate lands
under previous treaties. They undertook retaliatory attacks
when American troops sought to relocate them. American
7. 1 REMINI, JACKSON, supra note 1, at 305.
8. Id. at 305-07.
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settlers conveniently launched a separate raid into Florida,
“liberated” Amelia Island, and then sought the government’s help
when Spanish forces moved to evict them.
The Monroe
Administration authorized local commanders to pursue the
Seminole raiders across the Florida line, but to stop short and
await further orders should the raiders seek shelter in a Spanish
outpost. Monroe then placed Jackson in command of a broader
expedition and ordered him to “[a]dopt the necessary measure to
terminate a conflict” that the President claimed to wish to avoid.9
Jackson concluded that the best way to end tensions was to seize
all of Spain’s territory in Florida. He sent a letter to Monroe
seeking authorization, which Monroe subsequently claimed he
Nonetheless, Monroe
did not read until a year later.10
independently sent Jackson a letter giving him command of the
expedition against the Seminoles, the intervention at Amelia
Island, and unspecified “other services.”11 Monroe urged Jackson
that “[t]his is not a time for you to think of repose,” declared that
“[g]reat interests are at issue,” and asked that “every species of
danger” be “settled on the most solid foundation.”12
Jackson took this to be authorization to invade Florida. He
did not question that the President had the authority to send
him; in fact, he had promised Monroe that he would conquer the
whole territory within sixty days. In the First Seminole War of
1818, Jackson led a force of 3,000 regulars and volunteers that
destroyed the main Indian settlement near present-day
Tallahassee, and captured two British citizens—Alexander
Arbuthnot and Robert Ambrister—who had been advising the
Seminoles. He convened a military commission to try the two as
outlaws under his authority as the commander in the field. After
a guilty verdict, he sentenced both to death. Jackson then
marched his troops to Pensacola, the seat of Spanish rule in
Florida, and quickly seized it on the ground that hostile Indians
9.
10.
11.
12.
528
Id. at 347.
Id.
Id. at 348-49.
Id. at 349.
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were massed inside. None were found. A small Spanish force
surrendered after a short battle nearby, with no casualties on
either side, and were allowed to leave for Cuba. In June, Jackson
issued a proclamation declaring Florida to have been ceded to the
United States, established a provisional government, and
appointed occupation officials.13
Jackson’s battlefield successes sparked a political firestorm.
Monroe never tried to stop Jackson’s campaigns in the spring and
summer of 1818. But after the fighting ended, Secretary of War
John Calhoun, later Jackson’s Vice President, and Treasury
Secretary William Crawford argued that Jackson had violated
the Constitution and demanded his punishment. That course
would have required Monroe to return Florida, which he was not
about to do. Secretary of State John Quincy Adams ironically
defended Jackson on the ground that the seizure of Pensacola
was justified by military necessity.14 Instead, Monroe sent
Jackson a letter maintaining that the general had exceeded his
orders, but that circumstances justified pursuit of the Indians
into Spanish territory—even though under the Constitution the
attack on Pensacola required a declaration of war from
Congress.15 Jackson took full responsibility for the invasion, but
continued to claim that Monroe had authorized it. Congress
initiated an investigation and Speaker of the House Clay sought
Jackson’s censure, along with legislation prohibiting the
Executive from invading foreign territory without congressional
permission.16 As Jackson journeyed to Washington to personally
manage his defense, public opinion turned strongly in his favor.17
Clay’s proposals were resoundingly defeated in the House by 2-1
margins.18 Meanwhile, Adams justified Jackson’s attacks to the
Spanish government as necessary to prevent further Indian
13.
14.
15.
16.
17.
18.
Id. at 351-64.
Id. at 367.
Id. at 367-68.
Id. at 371-74.
Id. at 373.
Id. at 374.
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attacks on Americans.19 On February 22, 1819, Adams reached
an agreement with the Spanish in the Adams-Onis Treaty ceding
Florida to the United States in exchange for American
assumption of claims against Spain of up to $5 million.20
As President, Jackson had no occasion to lead the nation into
war. Yet he never lost his belief that the Spanish, and their
Mexican successors, should give ground to the Americans.
Jackson pursued the acquisition of Texas throughout his
Presidency.
Jackson believed that the United States had
acquired Texas in the Louisiana Purchase, and blamed the
Adams-Onis treaty for giving up Texas and for the
“dismemberment” of the American empire.21 Upon assuming the
Presidency, he sent envoys to Mexico City to negotiate for Texas;
they made matters worse by writing to the President about the
Mexicans’ susceptibility to bribery and corruption in letters that
found their way into the press.22 Meanwhile, Americans within
Texas agitated for independence and annexation. About 35,000
Americans, some with slaves, had settled in Texas at the open
invitation of the Mexican government between 1821 (the year of
independence from Spain) and 1835. When Jackson’s efforts to
buy Texas failed, Americans in Texas took matters into their own
hands.
In November 1835, Texans established a provisional
government, and in the spring of 1836, declared independence.
General Santa Anna, who had established a military government
over Mexico, sought to put down the rebellion with 6,000 troops.
After he reduced the Alamo and executed the survivors, Santa
Anna met defeat at the hands of Sam Houston, the former
Governor of Tennessee and Jackson’s close friend, on April 21,
1836 at the Battle of San Jacinto. Captured, Santa Anna ordered
Mexican troops out of Texas and signed treaties recognizing the
withdrawal. Although news of the victory thrilled the American
19.
20.
21.
22.
530
See id. at 369.
Id.
3 REMINI, JACKSON, supra note 1, at 352.
Id. at 354-55.
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public, it also re-opened the question of slavery in the territories.
Texas sent delegations seeking annexation, but abolitionists and
Northern leaders worried that its addition would give the slave
states an advantage in the Senate.23 Jackson was unwilling to
move forward with annexation because he worried that sectional
divisions over slavery would complicate the election of his chosen
successor, Martin Van Buren; nor did he want to move world
opinion against the United States.24 He left the matter to
Congress to decide, as under the Constitution it controlled the
acquisition of new territory and the admission of states. After
both the House and Senate appropriated funds and confirmed an
envoy to Texas, Jackson decided (on the day before his last in
office) to recognize Texan independence. Recognition paved the
way for the incorporation of Texas in 1845.25 The Constitution
nowhere granted the Executive the explicit power to recognize
foreign nations, but Presidents and Congresses had long
considered it part of the executive power over foreign relations.
Jackson was no different.
A second pillar of Jackson’s support for western expansion
was his support for the policy of Indian removal.26 In order to
fulfill the promise of the West, settlers needed land. Millions of
acres in the Southwest, however, remained in the hands of
Indian tribes under federal treaties; the Cherokee tribe, for
example, possessed more than six million acres in Georgia. The
Cherokee had their own constitution and laws. Georgia launched
an effort to force them to leave by imposing state law, and to
23. Id. at 359-60.
24. Id.
25. The admission of Texas itself would mark an expansion of executive
power. Initially, under President John Tyler, the Senate rejected a treaty
annexing Texas by a vote of 35 to 16 on June 8, 1844. After James Polk
defeated Henry Clay in the presidential election that November, Congress
enacted a simple statute approving the annexation and admitting Texas as a
state by a vote of 120 to 98 in the House and 27 to 25 in the Senate. President
Tyler signed the law on March 1, 1845, just before Polk was inaugurated. See
Vasan Kesavan & Michael Stokes Paulsen, Let’s Mess With Texas, 82 TEX. L.
REV. 1587, 1592-93 (2004).
26. See HOWE, supra note 1, at 342-57.
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keep white Americans from assisting them.27 Federal policy
recognized the Indian tribes were self-governing sovereigns, they
should remain on their lands, and missionaries should be sent to
civilize them.28 Jackson held a very different view. He saw
removal of the Indians as advancing America’s economic
development and enhancing its strategic position in the
Southwest. Removing the Indians would open up fertile lands in
the West to white settlement, and it would eliminate an anomaly
from America’s sovereignty.29 Jackson also believed that whites
and Indians could not live together and that the best solution
was to keep the races apart30
In his first State of the Union Address, Jackson announced
his support for Georgia. To allow the Cherokee to administer
their own laws, he declared, would create an independent state
within the borders of Georgia.31 He told Congress that he had
“informed the Indians that their attempt to establish an
independent government would not be countenanced by the
Executive of the United States.”32 Jackson said he “advised them
to emigrate beyond the Mississippi or submit” to state law.33
Jackson knew that the Indians would be unable to live under
state law and that they would have little option but to
emigrate.34
Jackson’s interpretation of the Constitution represented a
180 degree change in federal policy. Unlike Presidents today,
Jackson showed little hesitation in announcing an independent
opinion on the Constitution’s meaning. He did not look to
27.
28.
29.
30.
31.
Id. at 346.
MAGLIOCCA, supra note 1, at 14-15.
HOWE, supra note 1, at 347.
MAGLIOCCA, supra note 1, at 14-15, 22-29.
Jackson, First Annual Message to Congress, supra note 2, at 457-58.
Article IV, Section 3 of the United States Constitution states that “New states
may be admitted by the Congress into this Union; but no new State shall be
formed or erected within the Jurisdiction of any other State . . . without the
consent of the legislatures of the States concerned as well as of the Congress.”
32. Jackson, First Annual Message to Congress, supra note 2, at 458.
33. Id.
34. See HOWE, supra note 1, at 348.
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judicial decisions for guidance. The Marshall Court would not
clearly identify the constitutional status of the Indian tribes until
1831.35 On the merits, Jackson’s interpretation seems mistaken.
When the federal government granted the Indian tribes the right
to enforce their own laws, it did not make them states. Indian
tribes did not receive two votes in the Senate, for example, nor
did they receive any House Representatives or votes in the
Electoral College, as required by the Constitution. Nothing in
the Constitution prohibited the exercise of sovereignty by a tribe
within a state.
Jackson placed the Indian Removal Bill at the top of the
legislative agenda for his first year in office.36 It set aside land
west of the Mississippi for the Cherokee, should they voluntarily
choose to leave their lands in Georgia. To force them to move, it
rejected Cherokee claims to sovereignty and subjected them to
state laws. The Removal Bill was consistent with Jackson’s
general view of allowing the states to regulate all matters not
specifically given to the federal government. Critics, led by
Northern Christian groups, accused Georgia of violating federal
treaties and attacked the Administration for racism. Fierce
public opposition to the bill mobilized a permanent anti-Jackson
movement throughout the country and led to a split between free
and slave states. It passed handily in the Senate, but by only
102-97 in the House in 1830.37
Indians and their allies challenged Jackson in the courts.
The Supreme Court threw out their first attempt to prevent
Georgia from enforcing its laws because they were not a “foreign
nation” that could appear in federal court.38 Georgia had already
declared that it would not obey the Supreme Court, and
Jackson’s supporters in Congress introduced a bill to repeal
Section 25 of the Judiciary Act of 1789, which had given the
35. Cherokee Nation v. Georgia, 30 U.S. 1 (1831).
36. HOWE, supra note 1, at 347.
37. HOWE, supra note 1, at 352; Act of May 28, 1830, ch. 148, 4 Stat. 411,
21st Cong. (1st Sess. 1830).
38. Cherokee Nation, 30 U.S. 1 (1831).
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Court jurisdiction over state court judgments.39 The Cherokee
did win a partial victory, however, because the Court declared
that Indians were not simply citizens of Georgia, but instead
were “domestic dependent nations” in a “state of pupilage,” in
which “their relations to the United States resemble that of a
ward to his guardian.”40 The right case came along immediately
when Georgia sought to eject Christian missionaries living
among the Cherokee, and arrested and jailed those who refused
to obey. Two missionaries, Samuel Worcester and Elizur Butler,
challenged their imprisonment to the Supreme Court.
In
Worcester v. Georgia, Chief Justice Marshall struck down the
Cherokee Codes, not because they violated treaties with the
Indians, but because they violated the Constitution.41 According
to Marshall, the “Indian nations had always been considered as
distinct, independent political communities, retaining their
original natural rights, as the undisputed possessors of the soil,
from time immemorial.”42 The Constitution, the Court held, gave
complete control over all relations with the Indians to the federal
government and ousted the states from the same.
Georgia refused to appear before the Court and made no
moves to obey the Court’s ruling. The crisis prompted Jackson to
display his vision of an independent Executive. Jackson took no
action to enforce the Supreme Court’s judgment. “Well, John
Marshall has made his decision, now let him enforce it,” Jackson
was reported to have said.43 Historians have disputed whether
Jackson actually uttered those words, which were reported
second-hand in a book long after he left office. According to
Daniel Howe’s recent work, however, the comments were
“consistent with Jackson’s behavior and quite in character.”44
39.
40.
41.
42.
MAGLIOCCA, supra note 1, at 36.
Cherokee Nation, 30 U.S. at 17.
Worcester v. Georgia, 31 U.S. 515, 561 (1832).
Id. at 559. For an insightful discussion of Worcester, see Philip P.
Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and
Interpretation in Federal Indian Law, 107 HARV. L. REV. 381 (1993).
43. COLE, supra note 1, at 114.
44. HOWE, supra note 1, at 412 n.2.
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They illustrate Jackson’s pugnacity, his Indian policy, and his
view of the President’s position in the constitutional system.
Jackson followed Jefferson’s belief that the executive had an
equal right to interpret and enforce his own vision of the
Constitution—a path he would pursue to great effect in his battle
with the Bank of the United States. As he had made clear in his
State of the Union Address, Jackson believed that the federal
government did not enjoy the sole prerogative to regulate the
Indian tribes. Nor did he feel a constitutional obligation to obey
the interpretation of the Constitution held by another branch.
Although Jackson did nothing to support the Court’s
constitutional powers, he acted to defuse the political crisis.
Rather than defy the Supreme Court outright, the Georgia courts
simply refused to acknowledge the Supreme Court’s decision.
Without any formal acceptance or rejection of Worcester by the
state courts, the Supreme Court had no formal legal authority to
order Georgia to obey the decision.45 Even if Georgia had openly
refused to obey Worcester, the Supreme Court recessed for nine
months and was unable to reverse the State’s decisions.46
Jackson commented that “the decision of the supreme court has
fell still born, and they find they cannot coerce Georgia to yield to
its mandate.”47 The confrontation, however, generated political
trouble for the Administration. Newspapers widely reprinted
Worcester, which served as ammunition to attack Jackson in his
soon-approaching re-election campaign. Jackson and Van Buren
worked through the party machinery to convince the Governor of
Georgia to commute the sentences in exchange for the
missionaries’ agreement not to seek further Court review.48
Indian issues would figure in the election of 1832, and Jackson
would take his overwhelming re-election as a validation of his
Indian removal policy.
In Jackson’s second term, the United States moved swiftly to
45.
46.
47.
48.
Id.
Id.
Id.
Id. at 412-13.
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remove the Indians from the western states. In 1835, a rump
Cherokee government agreed to a treaty that traded their
Georgia lands for five million dollars and land in Oklahoma.49
The Senate ratified the agreement by only one vote. In 1838,
12,000 Cherokee migrated to the West on the “Trail of Tears;” it
is estimated that 4,000 died.50 The U.S. Army forced the
Cherokee to leave without any preparations for the long journey
and a hard winter. By our standards today, American treatment
of the Indians is shocking and repulsive.51 Under the standards
of his time, Jackson’s views can be said to represent the views of
the voting public.
Jackson may have honestly believed that the lot of the
Indians would be improved by distance from whites. His actions
may have even prevented their wholesale destruction, which
could have occurred had they attempted to remain in Georgia
and other western states. He achieved what he had wanted – the
removal of a perceived obstacle to the growth of the American
republic. Jackson opened up 100 million acres to white settlers
in exchange for 30 million acres in Oklahoma and Kansas and
seventy million dollars.52 Although he believed himself to be
protecting the Indians by keeping them apart from whites, he
also wanted to open the best farmland to white settlers and to
impose state law so as to drive the Indians out. His policy
produced Indian removal at a significant cost in lives. While the
Trail of Tears occurred after Jackson left office, he surely bears
great responsibility for the tragedy, and he used the power of the
Presidency to bring it about.
III. THE BANK WAR
Jackson’s broad vision of his executive powers in foreign
49. Id. at 415.
50. Id. at 416.
51. For the claim that Jackson’s removal policy amounted to genocide, see
MICHAEL P. ROGIN, FATHERS AND CHILDREN: ANDREW JACKSON
SUBJUGATION OF THE AMERICAN INDIAN (1975).
52. HOWE, supra note 1, at 420.
536
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affairs was exceeded by the exercise of his constitutional powers
domestically. He placed the constitutional powers of the office—
removal, the veto, and the power to execute and interpret the
law—in the service of a new constitutional theory of the office.
For Jackson, the Presidency did not just rest on the same plateau
with the other branches of government. It was the primus inter
pares—the first among equals. Jackson conceptualized the
Presidency as the direct representative of the American people,
the only official in the federal government elected by the
majority. He proceeded to exercise a broad interpretation of his
constitutional powers, sometimes in conflict with Congress and
the courts, because he believed he was promoting the wishes of
the American people. Jackson’s attachment to the people came
through in the symbolic—as in his First Inaugural, when he
opened the White House to any and all, who then proceeded to
storm through the building destroying furniture, carpets, and
fine china53—and the real, as when he took his re-election as a
mandate to destroy the Bank of the United States.
At first, Jackson resorted to these powers just to keep his
administration from imploding. As he entered office, Jackson
made the basic mistake of appointing members of his cabinet
who turned out to be at odds with one another. This problem was
compounded by the presence of Vice President John Calhoun,
who, unbeknownst to Jackson, had accused him while in the
Monroe administration of waging an illegal war in Florida—and
would become one of Jackson’s fiercest political opponents.
Dissension began, however, not over policy but over a marriage.
Tennessee Senator and close friend John Eaton, whom Jackson
appointed Secretary of War, had allegedly carried on an affair
with Peggy Timberlake, his landlord’s daughter.54 Not only was
Ms. Timberlake much younger than the Senator, but she was
married to a Navy purser who then allegedly killed himself
because of her behavior.55 Eaton married Peggy, setting off a
53. COLE, supra note 1, at 34.
54. 2 REMINI, JACKSON, supra note 1, at 62, 161.
55. COLE, supra note 1, at 23-24.
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social scandal that rocked the administration. The wives of
Administration officials, such as Vice President Calhoun and the
Secretaries of the Treasury and Navy, as well as the Attorney
General and Jackson’s close friends and aides openly snubbed the
new Mrs. Eaton at social events.56 Her supporters included
Secretary of State Martin Van Buren, the Postmaster General,
and two of Jackson’s presidential advisors.57
As Donald Cole has observed, the issue dominated Jackson’s
first years in office, and led to Calhoun’s downfall.58 Because of
the social division, the members of Jackson’s cabinet were barely
on speaking terms. The first term ground to a halt. Jackson,
who took the insults to heart and personally conducted research
in Mrs. Eaton’s defense, came to see the whole affair as an effort
by Calhoun to succeed him in office.59 By the end of 1829,
Jackson switched his favor from Calhoun to Van Buren, who was
known as “the Little Magician” for his political and
organizational skills in creating an extensive political machine to
elect Jackson in New York.60 Jackson found his solution in his
power of removal. Although Jefferson had replaced Federalist
officials over time, he did not do so on a large scale. Jackson
believed in the wholesale replacement of executive branch
officials as a matter of policy and party patronage. He believed
that his popular election gave him the right, in the name of
reform, to replace those “unfaithful or incompetent hands” who
held power, as he said in his First Inaugural Address, with
officers of “diligence and talent” who would be promoted based on
Jackson believed that the
their “integrity and zeal.”61
concentration of power in the hands of long-serving public
officials threatened American liberty.62
Jackson praised
56.
57.
58.
59.
60.
61.
Id. at 35-36.
Id.
Id. at 38.
Id. at 37.
2 REMINI, JACKSON, supra note 1, at 213-14.
Andrew Jackson, First Inaugural Address (Mar. 4, 1829), in 2
MESSAGES AND PAPERS OF THE PRESIDENTS, 438 (James D. Richardson ed., 1896).
62. 2 REMINI, JACKSON, supra note 1, at 183.
538
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“rotation” in office as “a leading principle of the republican
creed.”63 For Jackson, “as few impediments as possible should
exist to the free operation of the public will,” and appointments to
public office should reflect the results of the presidential
election.64
In his first year in office, Jackson moved quickly to put his
words into effect. Of about 11,000 federal officials, Jackson
removed somewhere between ten to twenty percent in his first
year.65 Of those directly appointed by the President, he removed
fully forty-five percent, more than all of his predecessors put
together.66 Jackson believed he should have a bureaucracy that
would support his program, but historians ever since have
blamed him for introducing the “spoils system” into American
politics and ruining a relatively honest and efficient federal
bureaucracy.67 Jackson’s policy of rotation in office, or of
partisan patronage, required a robust view of the President’s
constitutional authority to hire and fire all those in the executive
branch.
Removal became the answer to the Eaton affair. By 1831,
the break with Calhoun was complete when Jackson obtained
documents showing that Calhoun had attacked him during the
invasion of Florida.68 In a letter to Calhoun accusing him of
“endeavoring to destroy” his reputation, Jackson wrote “in the
language of Caesar, Et tu Brute,” and declared that “[n]o further
communication” between the two would be necessary.69 Calhoun
published in the newspapers his correspondence with the
President on the Seminole Wars, in an effort to show that
others—particularly Van Buren—were attempting to destroy his
63.
64.
65.
66.
67.
Jackson, First Annual Message to Congress, supra note 2, at 449.
Id. at 448-49.
COLE, supra note 1, at 41.
Id.; HOWE, supra note 1, at 333.
LEONARD WHITE, THE JACKSONIANS: A STUDY IN ADMINISTRATIVE
HISTORY 327-32 (1954); HOWE, supra note 1, at 334.
68. COLE, supra note 1, at 80.
69. Id. at 81 (Jackson to Calhoun, May 30, 1830).
539
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career.70 Jackson and the nation were shocked by the public
airing of political dirty laundry. He could not remove the Vice
President, but he could fire his quarrelsome cabinet en masse—
especially its Calhoun supporters. Jackson became the first
President to demand the resignation of his entire cabinet at
once.71 He made clear that he would use his power of removal
vigorously, and that cabinet members had no constitutional right
to the autonomy to which they had become accustomed. It struck
the nation like a thunderclap; never before had so many
resignations of high office occurred at once. But it also served its
greater purpose—it allowed Jackson to end the political
infighting within his administration and to refocus it on his
policy goals. Jackson’s control over the executive branch and the
party would become even clearer when he decided in 1832 to
push Calhoun off the Democratic ticket and to replace him with
Van Buren.
The firings would provide the space for Roger Taney—who
would play a central part in Jackson’s next great constitutional
fight—to enter the cabinet as Attorney General. It is difficult
today to understand why the Bank of the United States would
spark a titanic political fight. Who would oppose the Federal
Reserve Bank today after its success in beating inflation and
keeping economic growth steady? Or the idea of keeping control
of the money supply out of the hands of politicians? Yet, Jackson
made a point of mentioning the Bank at the end of his First
Annual Message to Congress. He observed that “[b]oth the
constitutionality and the expediency of the law creating this bank
are well questioned by a large portion of our fellow-citizens,” and
he declared that “it has failed in the great end of establishing a
uniform and sound currency.”72 Jackson recommended that if
Congress were to keep the bank, significant changes in its
charter were necessary.73
70.
71.
72.
73.
540
Id. at 82.
Id. at 84-85.
Jackson, First Annual Message to Congress, supra note 2, at 462.
Id.
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Jackson’s hostility toward the Bank was shared by many
Americans of the time. It makes sense only because the Bank of
the United States was a wholly different creature from the
Federal Reserve of today. The legislation establishing the first
Bank of the United States, the one signed by George Washington
and over which Hamilton and Jefferson fought, expired just
before the War of 1812.74 Part of the nation’s terrible record in
that war was due to the government’s difficulties in financing the
military without a national bank.75 Lesson learned, Congress
established the Second Bank of the United States in 1816.76
Madison, who had argued against the constitutionality of the
first Bank while in Congress during the Washington
administration, signed the legislation as President. In a veto of
an earlier version of the bill, he had “[w]aiv[ed] the question of
the constitutional authority of the Legislature” because of
“repeated recognitions under varied circumstances of the validity
of such an institution in acts of the legislative, executive, and
judicial branches.”77 Madison further conceded that the Bank’s
legality had been established by additional “indications, in
difference modes, of a concurrence of the general will of the
nation.”78 In the famous case of McCulloch v. Maryland, studied
to this day by every law student, Chief Justice Marshall upheld
the constitutionality of the Bank in 1819 along lines similar to
those of Alexander Hamilton’s: although unmentioned in the
constitutional text, a national bank fell within Congress’s
Necessary and Proper Clause power because it allowed the
government to effectively exercise its tax, spending, commerce,
and war powers.79
As he suggested in his First Annual Message, Jackson did
not feel bound to Madison’s view or that of the Supreme Court.
74.
75.
76.
77.
COLE, supra note 1, at 57.
Id.
Id.
James Madison, Veto Message (Jan. 30, 1815), in 1 MESSAGES
PAPERS OF THE PRESIDENTS 555 (James D. Richardson ed., 1896).
78. Id.
79. McCulloch v. Maryland, 17 U.S. 316 (1819).
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Jackson’s objections to the Bank were not just constitutional. He
believed that the concentration of power in the Bank threatened
American liberties. By the time Jackson became President, the
Second Bank had come to dominate the American economy and
finance in a way unmatched by any other company or institution
since. It was a private corporation chartered by the federal
government, which held one-fifth of its stock and appointed onefifth of the directors. By law, only the Second Bank could keep
and transfer government funds, help in the collection of taxes,
loan money to the government, and issue federal bank notes. Its
$13 million in notes, which served as a form of paper currency,
made up almost forty percent of all notes in circulation, and its
$35 million in capital was more than double the annual federal
budget.80 It made twenty percent of all loans and held more than
one-quarter of all bank deposits in the nation.81 States could also
charter banks which issued notes, but those notes often came
into the possession of the Second Bank during the course of
normal business.82 Because it could call in those notes for
repayment at any time, the Second Bank effectively dictated the
credit reserves of the state banks, and thus of the entire national
banking system.83 As with the Federal Reserve Bank today, the
Second Bank’s control over the supply of money allowed it to
influence, if not control, the nation’s lending activities, interest
rates, and economic growth. Its stock was held by 4,000
shareholders, 500 of them foreigners, who enjoyed profits of eight
to ten percent per year.84
Jackson decided to rein in, and then destroy, the Second
Bank. He viewed it as an institution that benefited a small
financial elite. Corruption and outright embezzlement plagued
its earlier years. The first president of the bank, a former navy
and treasury secretary appointed by Madison, speculated in the
80.
81.
82.
83.
84.
COLE, supra note 1, at 57.
Id.
Id.
Id.
See id.; WILENTZ, supra note 1, at 76; see generally WALTER SMITH,
ECONOMIC ASPECTS OF THE SECOND BANK OF THE UNITED STATES (1969).
542
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Bank’s stock, benefited from corrupt branch operations, and
almost drove the Bank into bankruptcy.85 He resigned after a
congressional investigation.86 Under the next president, the
Bank was widely blamed for the Panic of 1819, which caused
state banks to close their doors, bankrupted many farmers and
businesses, and sparked a sharp increase in unemployment.87
The years after the War of 1812 witnessed a dramatic increase in
land speculation fueled by bank notes. During the Panic, the
Second Bank demanded that state banks redeem their notes in
hard currency, which caused a sharp contraction of credit, a run
of bankruptcies, and a sharp increase in unemployment.88
Jackson was elected to the Senate by the Tennessee legislature
in 1823 in part because of his public stance against the Bank
during the Panic. Political movements rose to oppose the Bank,
with states enacting laws heavily taxing the Bank or trying to
drive branches out of their territory.89 After the Panic, Jackson
remained hostile to the Second Bank because he believed it
concentrated economic and political power in the few hands that
dictated legislation, handed out patronage, guided elections, and
influenced government operations.
Ironically, by the time Jackson became President, the Bank
had changed its ways and had become a powerful aid to the
striking economic expansion of the 1820s and 1830s. Under
President Nicholas Biddle, the scion of a patrician Philadelphia
family, the Second Bank cleaned up its finances.90 It ended
internal corruption and kept a reserve of hard currency worth
roughly half the amount of notes outstanding to prevent the
speculative practices that produced the Panic. Through its
special relationship with the federal government and its holdings
85. ROBERT V. REMINI, ANDREW JACKSON AND THE BANK WAR: A STUDY IN
THE GROWTH OF PRESIDENTIAL POWER 27 (1967) [hereinafter REMINI, BANK WAR].
86. Id.
87. Id. at 27-28.
88. For one economist’s account, see MURRAY ROTHBARD, PANIC OF 1819:
REACTIONS AND POLICIES (1962).
89. REMINI, BANK WAR, supra note 85, at 30-31.
90. Id. at 32-33, 39.
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of specie and state bank notes, it effectively controlled the
national money supply and had a profound effect, as does the
central bank today, on the amount of credit and growth in the
economy.91 Biddle believed that government oversight and public
involvement in the Bank’s operations were unwelcome and
unnecessary.92 He made sure his influence was felt by paying
newspaper editors and legislators to defend the Bank. Daniel
Webster, who became a leader of the Jacksonian opposition,
served for a time on the board of directors. Biddle was not a
corrupt speculator, as were some of his predecessors, but a highly
educated, intelligent man of affairs who brought great ability and
energy to the job of administration. Neither Biddle nor his Bank
would go quietly.93
The approach of the 1832 presidential elections prompted the
first round in the fight between Jackson and Biddle’s Bank. In
his Second Annual Message to Congress, Jackson proposed
folding the Bank into the Treasury Department, but the
legislation establishing the Bank itself was not up for reauthorization until 1836.94 As the elections neared, Jackson
agreed not to seek any changes in the Bank’s charter until after
the elections.95 But a convention of National Republicans—the
group that split off from the Democratic Party to oppose
Jackson—nominated Henry Clay in December, 1831 as their
presidential candidate.96 Sensing a political opportunity to make
Jackson’s opposition to the Bank his winning campaign issue,
Clay convinced Biddle to seek renewal of the Bank’s charter four
years early.97 Both the House Ways and Means Committee and
the Senate Finance Committee had issued reports the previous
91.
92.
93.
94.
Id. at 37-38.
Id. at 34-35.
Id.
Andrew Jackson, Second Annual Message to Congress (Dec. 6, 1830),
in 2 MESSAGES AND PAPERS OF THE PRESIDENTS 529 (James D. Richardson ed.,
1896).
95. REMINI, BANK WAR, supra note 85, at 74.
96. Id. at 92.
97. Id. at 75-76.
544
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year finding the Bank constitutional and praising its
operations—Biddle himself had drafted the Senate report. The
Bank paid to distribute the reports throughout the country.98
Jackson chose Senator Thomas Hart Benson, with whom he had
once fought a duel that ended with a bullet in Jackson’s shoulder,
to lead the fight against the Bank.99 Clay’s supporters in the
House and Senate passed the bill in the summer of 1832 by a
vote of 28-20 in the Senate and 107-85 in the House.100 To throw
salt on Jackson’s wounds, the Senate (with Vice President
Calhoun casting the tie-breaking vote) even rejected Van Buren’s
nomination as minister to Great Britain.101 In pushing the Bank
Bill and working with Clay, Biddle not only lived up to the
charges that the Bank was a politicized institution, but he threw
down the gauntlet before a man who had never shrunk from a
fight.
The initial setbacks steeled Jackson’s determination. Van
Buren came to see Jackson at midnight shortly after the votes.
Jackson had stretched out on a sofa, his health suffering. Upon
greeting his visitor, he declared “The bank, Mr. Van Buren, is
trying to kill me, but I will kill it.”102 And he did. Jackson issued
a thundering veto on July 10, 1832. For the first time in
presidential history, a veto message extensively discussed
political, social and economic as well as constitutional objections
to legislation.103 Jackson portrayed the bill as a “gratuity” and a
“present” transferred from the American people to the Bank’s
shareholders, including the foreigners who held eight million
shares.104 The Bank constituted a monopoly that benefited “a
privileged order, clothed both with great political power and
enjoying immense pecuniary advantages from their connection
98.
99.
100.
101.
102.
103.
Id. at 99.
Id. at 77-78.
Id. at 80.
Id. at 93.
Id. at 15-16 (emphasis added).
Andrew Jackson, Veto Message (July 10, 1832), in 2 MESSAGES
PAPERS OF THE PRESIDENTS 576-91 (James D. Richardson ed., 1896).
104. Id. at 576-77.
AND
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with the Government,” at the expense of “merchant, mechanic, or
other private citizen[s]” who are not allowed to pay their debts
with notes, rather than hard currency.105 Such wealth, Jackson
argued, ought to give “cause to tremble for the purity of our
elections in peace and for the independence of our country in
war,” because they would use their wealth to “influence elections
or control the affairs of the nation.”106 Foreign shareholders,
Jackson feared, might cause the financial system to collapse
during a war—”[c]ontrolling our currency, receiving our public
moneys, and holding thousands of our citizens in dependence”
would pose a greater threat to national security than an enemy’s
armies and navies.107
Although it broke from practice by introducing his policy
views, the lasting impact of Jackson’s veto message remains his
thinking on the President’s independent authority to interpret
and enforce the Constitution. He conceded that the precedents of
the Supreme Court and previous Congresses had upheld the
bank.108
Jackson, however, declared that the Constitution
established the Executive as an independent and coordinate
branch whose decisions could not be dictated by the Court. “The
Congress, the Executive, and the Court must each for itself be
guided by its own opinion of the Constitution,” Jackson wrote.109
In fulfilling its constitutional functions, each branch has an equal
and independent duty to decide upon the constitutionality of
legislation, whether in passing it, enforcing it, or adjudicating it.
“The opinion of the judges has no more authority over Congress
than the opinion of Congress has over the judges,” Jackson
declared.110 And, he emphasized, “on that point the President is
independent of both.”111 He concluded that “[t]he authority of the
Supreme Court must not, therefore, be permitted to control the
105.
106.
107.
108.
109.
110.
111.
546
Id. at 578.
Id. at 581.
Id.
Id. at 582.
Id.
Id.
Id.
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Congress or the Executive when acting in their legislative
capacities . . . .”112 Jackson would only grant the courts “such
influence as the force of their reasoning may deserve.”113
Jackson remained convinced that Jefferson had been right in
1791. A national bank was not necessary and proper to carry
into execution the government’s constitutional powers, because it
was not truly indispensable. Congress, for example, has the
power to coin money. It had already established a mint;
therefore, a national bank could not truly be necessary and
proper to execute Congress’s power. Jackson closed by linking
his constitutional and policy objections to the higher goal of
democracy and liberty:
It is to be regretted that the rich and powerful too often
bend the acts of government to their selfish purposes.
Distinctions in society will always exist under every just
government. Equality of talents, of education, or of wealth can
not be produced by human institutions. In the full enjoyment
of the gifts of Heaven and the fruits of superior industry,
economy, and virtue, every man is equally entitled to
protection by law; but when the laws undertake to add to these
natural and just advantages artificial distinctions, to grant
titles, gratuities, and exclusive privileges, to make the rich
richer and the potent more powerful, the humble members of
society—the farmers, mechanics, and laborers—who have
neither the time nor the means of securing like favors to
themselves, have a right to complain of the injustice of their
Government. There are no necessary evils in government. Its
evils exist only in its abuses. If it would confine itself to equal
protection, and, as Heaven does its rains, shower its favors
alike on the high and the low, the rich and the poor, it would be
an unqualified blessing. In the act before me there seems to be
a wide and unnecessary departure from these just
principles.114
Jackson’s call to freedom does not fit modern conceptions of
112. Id.
113. Id.
114. Id. at 590.
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either liberal or conservative policy, but seems more libertarian.
He wanted to support the common man, but by reducing rather
than expanding the role of government in society. Deregulation,
however, would not benefit big business. Instead, Jackson
believed that government regulation entrenched the rich in
power; getting the government out of the way would allow
individual talents and merit to come to the fore.
Before Jackson, Presidents had vetoed nine pieces of
legislation; Jackson vetoed twelve.
He was also the first
President to make use of the “pocket veto,” in which the
Constitution allows the executive to veto bills enacted just before
Congress goes into recess without the possibility of override.
Washington set the precedent for the use of the veto purely on
policy grounds, but it was Jackson who transformed the power
into one that gave the President significant leverage in the
legislative process itself. The President would not just protect
the Constitution against encroachment by the legislature,
although that would continue to be one function of the veto.
Jackson made the President a permanent player in the
legislative process, one whose power far exceeded any individual
member of Congress. As Leonard White has observed, Jackson
endowed the Presidency with the political force of two-thirds of
Congress.115 Because of Jackson, any modern President with the
support of thirty-four senators can completely stall any proposed
legislation. Not only does the veto give the President tremendous
blocking power, but the mere threat of a veto provides him with
significant political advantage in influencing legislation.116
Forceful Presidents have combined the veto power with the right
to propose bills to ensure that Congress begins with the
administration’s proposed legislation first.
Jackson also made sure that Congress would worry about the
President’s views on the Constitution. Jackson’s veto of the Bank
115. LEONARD D. WHITE, THE JACKSONIANS: A STUDY IN ADMINISTRATIVE
HISTORY: 1829-1861 29 (1954).
116. See generally CHARLES M. CAMERON, VETO BARGAINING: PRESIDENTS AND
THE POLITICS OF NEGATIVE POWER (2000).
548
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presented a striking declaration of independence from the other
branches of government. He gave no deference to the views of
Congress, the Supreme Court, or even past Presidents on the
constitutionality of the Bank.
Jackson believed that as
President, he had a duty to decide for himself what the
Constitution meant and to use the powers of the Presidency to
advance that vision. Jackson’s was not a passive vision of the
Presidency, nor was it limited to self-defense of the office. He did
not limit his powers solely to protecting the Presidency from the
encroachments of the other branches. As with the Bank, Jackson
believed that the President should use his power affirmatively to
prevent the other branches from violating his view of the
Constitution, even if their policy did not infringe on executive
branch prerogatives. Of course, Jackson’s Bank message implies
that the other branches were also free to use their authority to
advance their constitutional views, and that they were in no way
bound by the President.
Jackson’s veto was met with howls of protest. Biddle wrote
to Clay that Jackson was a demagogue calling for anarchy.117
Webster gave a speech in the Senate portraying the President as
grabbing for “despotic power.”118 “[A]lthough Congress may have
passed a law, and although the Supreme Court may have
pronounced it constitutional,” Webster said, “yet it is,
nevertheless, no law at all, if he, in his good pleasure, sees fit to
deny it effect; in other words, to repeal and annul it.”119 Webster
foresaw that Jackson’s example would lead to the presidential
influence over legislation we see today. His veto message “claims
for the President, not the power of approval, but the primary
power, the power of originating laws.”120 Following with a harsh
attack, Clay argued that the veto was to be used in extraordinary
moments when Congress had acted rashly.121
Now, Clay
117.
118.
119.
120.
121.
REMINI, BANK WAR, supra note 85, at 84.
Id. at 84-85.
Id. at 84.
Id. at 85.
Id.
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observed, the President’s veto had become a threat used to
influence legislation, which was “hardly reconcilable with the
genius of representative government.”122 Every time Presidents
expand the power of the Executive branch, members of Congress
invariably respond with claims that tyranny is coming or the end
of democratic government is on its way.
Jackson’s July, 1832 veto bolstered his claims that the
Presidency served as the direct representative of the American
people. He obviously aimed his message not to Congress, but to
the American people. It was reproduced in newspapers and
pamphlets by the tens of thousands, some at the expense of
Biddle, who thought the arguments so specious that they made
for good propaganda. More importantly, with the presidential
elections approaching, Jackson was asking the people to decide
the Bank issue by voting for him. As Remini writes, “[n]ever
before had a chief executive taken a strong stand on an
important issue, couched his position in provocative language,
and challenged the American people to do something about it if
they did not approve.”123 Jackson transformed the presidential
election into a plebiscite—the 1832 presidential election gave the
voters a choice between Jackson or the Second Bank. Victory in
the 1832 election would give the President a popular mandate to
pursue the destruction of the Bank. Jefferson, too, had turned
the election of 1800 into a referendum, but it was not so much on
a single issue as it was a struggle between the Federalists and
Republicans for power. Jackson’s reelection campaign turned on
a single issue, which would give him great political support for
his policy if he won.
The first nominating conventions, held by the two parties in
1832, strengthened the link between popular wishes and his
reelection. There was no mistake about the issues involved—
Jackson’s exercise of his constitutional powers stayed at the
center of the election. National Republicans, who nominated
Clay and counted Webster and Calhoun among their leaders,
122. Id.
123. Id. at 87.
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argued that Jackson had seized unconstitutional powers and was
bent on political spoils and tyranny.124 A National Republican
newspaper, for example, accused Jackson of annulling “two
houses of Congress, the Supreme Court, and the Constitution of
the United States.”125 Another asked, regarding Jackson and his
veto, “[c]ould it have any effect but to swell the power and
augment the influence of the Executive . . . ?”126 A third declared
that the Constitution was “a dead letter, and the will of a
DICTATOR is the Supreme Law!”127
Democrats responded that Jackson represented democracy
and the wishes of the common man against the concentrated
power of the Bank and a wealthy aristocracy.128 They had the
luck to fight against a Bank determined to make itself a bigger
target by interfering in the election. Biddle paid for the
reprinting of Webster’s and Clay’s speeches against the veto, and
poured roughly $100,000 into the campaign to defeat the
General.129 Democrats used this as ammunition against Clay,
claiming he fronted for a Bank that was trying to buy the election
and bribe public officials.130 Rather than run from Jackson’s use
of presidential power, Democrats welcomed the focus on their
leader and used mass rallies, parades, and campaign events to
make him the center of the campaign.131
Jackson won re-election overwhelmingly.
He won 219
electoral votes to Clay’s forty-nine, with a third party candidate
receiving seven.132 Jackson won all of the South and the West
except for Clay’s home state of Kentucky and South Carolina,
which gave its votes to someone who was not running (for
reasons which will become clear). He lost only four other states,
124.
125.
126.
127.
128.
129.
130.
131.
132.
Id. at 90-101.
Id. at 101.
Id.
Id.
Id. at 99-100.
Id. at 98-99.
Id. at 99.
Id. at 103-04.
Id. at 105.
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all in the Northeast. He won about fifty-five percent of the
popular vote, with 687,502 in his favor against 530,189 for his
opponents, a slight decline from his percentage of the vote in the
first election.133 The election vindicated Jackson’s decision to
gamble the election over his opposition to the Bank and his
exercise of presidential power. It transformed the nature of the
office by grounding his political support on the majority, rather
than the states, the Electoral College, or his political party.
Jackson would use this broad base to claim that his views on
policy were those of the American people, and to lay an equal, if
not superior, claim to that of Congress for the mantle of
representative of the democracy.
Jackson began his second term with a renewed offensive
against the Bank. It was not enough for the General to wait for
“the Monster” to disappear in four years. In Spring 1833,
Jackson decided to withdraw all federal funds from the Bank and
transfer them to state banks.134 Withdrawal would drain about
half of the deposits from the Bank, effectively crippling it.
Jackson believed that this would prevent Biddle from pushing a
re-charter bill through Congress.135 It also placed the General in
his favorite position, that of dictating events. On March 19,
Jackson read a paper to his Cabinet laying out his policy toward
the Bank.136 He would not suffer its re-charter and wanted to try
managing federal funds through state banks or possibly a new
federal bank limited to doing business only in Washington, D.C.
(which would not run afoul of Jackson’s constitutional
objections).137 Only Taney supported Jackson; the rest of the
Cabinet thought it best to keep the government’s business with
the Bank.138 Treasury Secretary Louis McLane argued in a
lengthy letter to Jackson against withdrawal of federal funds
because of the effect on the economy and worries about
133.
134.
135.
136.
137.
138.
552
Id. at 106.
Id. at 109.
Id. at 111.
Id. at 112-13.
Id.
Id. at 113.
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mismanagement by the state banks.139
The 1816 statute
establishing the Second Bank authorized only the Treasury
Secretary to withdraw federal funds from the Bank and required
him to explain his reasons to Congress.140 It was also clear that
Congress would oppose any withdrawal. The 1832 elections had
not given the Jacksonians a majority in the Senate, which
remained dominated by Calhoun, Clay, and Webster. Even the
Democratic House overwhelmingly declared that federal deposits
were safe in the Bank.141
The President responded by drawing on his full
constitutional powers to get the Bank out of the business of
holding the government’s money. He sparked a political and
constitutional controversy of a kind rarely repeated in the
nation’s history. Jackson first rearranged his Cabinet to get
McLane out of the Treasury—he was moved to Secretary of
State— replacing him with William Duane, a known opponent of
the Bank.142 Duane, however, got cold feet and sought delay of
Jackson took the extraordinary steps of
any decision.143
convening a cabinet meeting on September 17, 1833, to notify
them of his decision to withdraw the funds, and the next day had
Taney read the Cabinet a lengthy “exposé” of the Bank in his
name.144 Jackson blamed the Bank for making the re-charter an
issue in the presidential election, and for trying to use its
financial influence to defeat him. He charged that it was
controlling many major newspapers, had delayed the
government’s efforts to retire the national debt, and had even
unjustly charged the government high fees. Jackson interpreted
“his reelection as a decision of the people against the bank,” and
declared that “the people have sustained the President,
notwithstanding the array of influence and power which was
139.
140.
141.
142.
143.
144.
Id. at 113-14.
Act of Apr. 10, 1816, § 16, 3 Stat. 266, 274, 14th Cong. (1st Sess. 1816).
REMINI, BANK WAR, supra note 85, at 111.
Id. at 115.
Id. at 116.
Id. at 118.
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brought to bear upon him.”145 Jackson portrayed the issue as
whether the President or the Bank would govern, which he called
“an irresponsible power which has attempted to control the
Government.”146
Duane still resisted and asked for a delay. Jackson had the
government announce the withdrawal of the funds on September
20th anyway.147 Duane refused to carry out the order. Jackson
informed him that as a member of the executive branch, Duane
worked for him. “A secretary, sir, . . . is merely an executive
agent, a subordinate, and you may say so in self-defense,” the
President told Duane.148 Duane claimed, however, that Congress
had given him, not the President, the discretion to decide where
to deposit federal funds and asked for another delay. “Not a
day,” Jackson exclaimed, “not an hour.”149 Jackson fired Duane
in a letter on September 23rd and replaced him with Taney. “I
surely caught a tarter in disguise,” Jackson explained to Van
Buren, “but I have got rid of him.”150 Taney began carrying out
the withdrawal almost immediately.
In this swift action,
Jackson gave form to the ideas of Washington and Jefferson. As
Chief Executive, Jackson believed it was his constitutional right
to decide how to carry out federal law, such as the statute on the
deposit of federal funds. In order to execute the law, he had to
control subordinate officials in the executive branch. If they
would not follow his constitutional views and policy priorities, he
would exercise his constitutional authority of removal and
replace officials who refused to follow his orders.
Biddle responded with everything he had. His bank began a
rapid restriction on credit and called in loans to state banks.151
State banks responded by calling in their own loans, producing a
145. Andrew Jackson, Removal of the Public Deposits (Sept. 18, 1833), in 3
MESSAGES AND PAPERS OF THE PRESIDENTS 7 (James D. Richardson ed., 1896).
146. Id.
147. REMINI, BANK WAR, supra note 85, at 122.
148. Id. at 123.
149. Id. at 124.
150. Id.
151. Id. at 126-27.
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contraction of lending throughout the national economy.152 The
restriction on credit sparked a financial panic, which Biddle
hoped would pressure the politicians to re-charter the bank and
override Jackson.153 Opposition took political form too. Critics of
Jackson coalesced in the winter of 1833 into a new political party,
the Whig Party, which took as its main platform (as suggested by
its name) opposition to Jackson’s expansion of executive power.154
As head of the new party, Clay convinced the Senate to launch an
investigation into the withdrawal of the deposits, and issued a
demand for an official copy of the September 18th exposé widely
reprinted in the papers.155
Having used his powers to veto, to fire officials, and to
interpret and enforce the law, Jackson next turned to executive
privilege. Jackson responded to the Senate with a resounding
“no.” In a message to the Senate on December 12, 1833, Jackson
wrote that “[t]he executive is a coordinate and independent
branch of the Government equally with the Senate.”156 He stated
that he had “yet to learn under what constitutional authority”
the Senate could “require of me an account of any
communication, either verbally or in writing, made to the heads
of Departments acting as a Cabinet council.”157 If he were
required to produce the document, Jackson argued, he might as
well “be required to detail to the Senate the free and private
conversations I have held with those officers on any subject
relating to their duties and my own.”158 He saw no reason why
the document was needed for the performance of any legislative
duty, and he believed production would interfere with the proper
152. Id. at 127.
153. Id. at 126-27.
154. Id. at 129 (“National Republicans, Bank men, nullifiers, tarriff men,
states’ righters, former Democrats and other dissidents joined together to form
the ‘Whig’ party, adopting this name to designate their opposition to
concentrated power in the hands of the chief executive.”).
155. REMINI, BANK WAR, supra note 85, at 137-38.
156. Andrew Jackson, Message to Senate (Dec. 12, 1833), in 3 MESSAGES
AND PAPERS OF THE PRESIDENTS 36 (James D. Richardson ed., 1896).
157. Id.
158. Id.
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operation of his own branch. Although Jackson did not use the
words “executive privilege,” his explanation followed the same
constitutional basis set out by Washington’s message on the Jay
Treaty and Jefferson’s refusal to obey the Burr subpoena.
Clay responded with an idea that would make an encore
appearance during the affairs of Bill Clinton—censuring the
President. Although the Jacksonians held a majority of the
House, taking impeachment out of the equation, the Whigs still
had sufficient support in the Senate. Clay chose to make
Jackson’s usurpation of constitutional authority the grounds for
censure. In his speech on the resolution, Clay exclaimed that
“[w]e are . . . in the midst of a revolution,” because of the veto and
the removal of the funds, which was “tending towards a total
change of the pure republican character of the Government, and
the concentration of all power in the hands of one man.”159
Criticism of Presidents and their exercises of executive power
have changed little since the tone set by Clay. The Great
Compromiser repudiated Jackson’s claim that the President
represented the wishes of the democracy. “I am surprised and
alarmed at the new source of executive power which is found in
the result of a presidential election.”160 According to Clay, the
President’s sole authority came from the Constitution and the
laws, not “loose opinions, in virtue of the election,” which
allegedly “incorporate themselves with the constitution, and
afterwards are to be regarded and expounded as parts of the
instrument!”161 Clay urged that no one should doubt, however,
that Jackson had even violated those duties entrusted to him by
the laws—he had vetoed a bill on grounds not permitted by
constitutional practice, and he had seized from the Secretary of
the Treasury the duties entrusted to him by Congress. Clay
ended his appeal to the Senate with the claim, again repeated
against Presidents ever since, that tyranny was on the horizon.
“The premonitory symptoms of despotism are upon us,” Clay
159. REMINI, BANK WAR, supra note 85, at 138.
160. Id.
161. Id.
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declared, “and if Congress do[es] not apply an instantaneous and
effective remedy, the fatal collapse will soon come on, and we
shall die—ignobly die—base, mean, and abject slaves; the scorn
and contempt of mankind; unpitied, unwept, unmourned!”162
Perhaps Clay’s rhetoric goes unmatched in the attacks on the
Presidency today; perhaps not. It had a profound effect upon the
Senate. Webster and Calhoun followed with speeches that
stretched for days.163 The Senate eventually responded by using
its constitutional powers to attempt to check Jackson. Although
without any legal effect, it enacted a resolution rejecting Taney’s
report of the reasons for withdrawal of the funds by twenty-eight
to eighteen. On March 28, 1834, it passed the censure of Jackson
by twenty-six to twenty.164
Jackson cared above all about his honor, which was stung by
the censure. He did not shrink away nor seek compromise. A
few days after the censure, he responded with his “Protest,”
which remains one of the most forceful declarations of
presidential power in American history.165 He first attacked the
Senate for acting without power because it had neither enacted
legislation nor initiated impeachment proceedings; the
Constitution spoke nowhere of a power to censure. But his
message went further in charting an expansive vision of the
Presidency. He claimed the right as Chief Executive, to use his
powers to attack threats to the health of the nation. “So glaring
were the abuses and corruptions of the bank,” Jackson wrote, “so
palpable its design by its money and power to control the
Government and change its character, that I deemed it the
imperative duty of the Executive authority” to check the bank.166
The censure was no less than an effort by the Senate to interfere
162.
163.
164.
165.
Id. at 138-39.
Id. at 140.
10 REG. DEB. 1187 (1834).
Andrew Jackson, Protest (Apr. 15, 1834), in 3 MESSAGES AND PAPERS OF
THE PRESIDENTS 69 (James D. Richardson ed., 1896) [hereinafter Jackson,
Protest]. See Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive
During the First Half-Century, 47 CASE W. RES. L. REV. 1451, 1545-55 (1997).
166. Jackson, Protest, supra note 165, at 85.
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with and even seize this executive authority. Each branch,
however, was equal to and independent of the other, and could
not interfere with the allocation of powers by the Constitution.
Having decided that the Bank was a threat, Jackson argued
that he was entitled to his constitutional authorities to pursue
his policies.167 Those powers included the authority to order and,
if necessary, fire subordinates such as Duane. The Constitution’s
grant of the executive power to the President, and his duty to
execute the laws, made him “responsible for the entire action of
Therefore, “the power of
the executive department.”168
appointing, overseeing, and controlling those who execute the
laws—a power in its nature executive—should remain in his
hands.”169 If a subordinate would not obey the President’s orders,
the President had every constitutional right to fire the
subordinate and replace him with someone who would. These
subordinates included the Secretary of the Treasury, regardless
of what duties were delegated to the department by Congress.
The third piece of Jackson’s theory of the Presidency was to
link his duty to protect and his constitutional power to enforce
with his role as representative of the people. Jackson declared,
not for the first or last time: “The President is the direct
representative of the American people.”170
Through their
selection of a President, the American people held the executive
branch accountable. This required that Jackson have full control
over every executive branch official and the enforcement of all
federal law. Otherwise, there is “no direct responsibility to the
people in that important branch of this Government.”171 If the
Treasury Secretary could reject a presidential order, it would
allow him to defy “the Chief Magistrate elected by the people and
responsible to them.”172 An independent Treasury Secretary,
followed to its logical conclusion, “will be found effectually to
167.
168.
169.
170.
171.
172.
558
Id. at 85-86.
Id. at 79.
Id.
Id. at 90.
Id.
Id.
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destroy one coordinate department of the Government, to
concentrate in the hands of the Senate the whole executive
power, and to leave the President as powerless as he would be
useless—the shadow of authority after the substance had
departed.”173
Jackson effectively claimed a role not unlike that of the
ancient Roman tribunes, implying that the President had a
superior tie to the people. In perhaps the first example of a now
common presidential practice, Jackson directed his message over
the heads of Congress to the people. He claimed that he was only
carrying out the wishes of democracy against the conspiracies of
the aristocracy to hoard power. Jackson, however, was going
beyond the vision of the Presidency held by Washington and
Jefferson. Washington thought of himself as a republicanized
monarch, and Jefferson as a prime minister. In both visions, the
President was independent of Congress, but it was also
coordinate—the Presidency relied upon a symbiotic relationship
with the legislature for progress. Jackson’s Protest was the
Presidency’s declaration of independence. Although each branch
was independent of the other, the Executive was no longer just
an equal. He was superior in his direct ties to the American
people. Rather than seek legislation from Congress, Jackson’s
Presidency would speak for the people and force Congress to
cooperate with his agenda. The President, not Congress, would
dictate the tempo of politics, the focus for legislation, and
represent the will of the people.
Whigs in the Senate understood what Jackson was about,
and they reacted with anger. Webster argued that the President
did not hold all of the executive power, he did not enjoy a removal
authority, and he did not control the cabinet secretaries. But he
reserved his strongest attack for the plebiscitary Presidency.
Jackson believed his claims of presidential power were “enough
for a limited, restrained, republican government! An undefined,
undefinable, ideal responsibility to the public judgment!”174 “The
173. Id. at 86.
174. REMINI, BANK WAR, supra note 85, at 145.
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Constitution,” Webster declared, “nowhere calls him the
representative of the American people; still less their direct
representative.”175 Why else, Webster asked, was the President
chosen by the Electoral College rather than by direct ballot?176 If
Jackson were right, Webster exclaimed, “then I say, Sir, that the
government (I will not say the people) has already a master.”177
Calhoun spoke even more strongly, exclaiming “[w]hat
effrontery” and “boldness of assertion” from Jackson.178 “Why, he
never received a vote from the American people,” but only from
electors.179 Calhoun predicted that Jackson would appeal to the
people again to wage “hostilities” against the Senate.180 Urging
that the Senate refuse to accept the Protest, Clay again
prophesized the coming dictatorship. According to Jackson,
“every thing concentrates in the president. He is the sole
Executive; all other officers are his agents, and their duties are
his duties.”181 This claim, Clay declared, “is altogether a military
idea, wholly incompatible with free government.”182 The Senate
voted twenty-seven to sixteen to reject Jackson’s Protest, and
then used its confirmation power over appointments to fight
back.183 It refused to confirm Jackson’s nominees to the Bank’s
board of directors and, to put the icing on the cake, refused to
confirm Taney as Treasury Secretary.184
Jackson, however, would not be beaten. Do what they might,
Biddle, the Great Triumvirate, and the Whig party could not
overcome the fact that they lacked the two-thirds majority to
force a re-charter, or a return of the deposits, over Jackson’s veto.
Jackson called forth his political powers as well, using his
175.
176.
177.
178.
179.
180.
181.
182.
183.
184.
560
Id.
Id.
Id. at 146.
Id.
Id.
Id.
10 REG. DEB. 1575 (1834).
Id.
Id.
Id.
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leadership of the Democratic Party to name anti-Bank men to
important congressional positions and to focus state
organizations on the war with the Bank. Biddle’s decision to
instigate a financial panic backfired and turned public opinion
against him. In January 1834, Jackson furthered his offensive
by terminating the Bank’s role in paying out federal pensions to
Revolutionary War veterans.185 When Biddle refused to return
the funds to the government, Jackson blamed the suspension of
pensions on Biddle, a story the public was only too eager to
believe.186 By spring, the President’s political work bore its fruit,
with the governor, legislature, and two Senators from
Pennsylvania—the home state of the Bank—publicly condemning
Biddle and the Bank for the panic. Other state executives
quickly followed suit. Led by Polk, the House followed up with a
resolution against re-charter and return of federal deposits, and
launched an investigation into the Bank’s role in causing the
panic. Biddle made matters worse by refusing to testify or
provide documents to the House investigation.187 By spring 1834,
the Bank had no more rights as the special handler of federal
funds, lost its popular and political support, and was blamed for
the economic panic. Within the year, Jackson’s victory was
complete: Democrats beat the Whigs badly in the 1834 midterm
elections;188 his administration retired the entire federal debt
(reducing the need for a federal bank) as of January 1835;189 the
Senate voted to remove the censure resolution from its books;190
and Roger Taney was confirmed as Chief Justice upon John
Marshall’s death in 1835.191 Jackson reveled in his victory. “I
have obtained a glorious triumph,” he wrote to a friend.192 The
House’s support “put to death, that mamouth [sic] of corruption
185.
186.
187.
188.
189.
190.
191.
192.
REMINI, BANK WAR, supra note 85, at 160.
Id.
Id. at 167.
Id. at 168.
WILENTZ, supra note 1, at 114.
REMINI, BANK WAR, supra note 85, at 174.
See WILENTZ, supra note 1, at 150.
REMINI, BANK WAR, supra note 85, at 166.
561
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and power, the Bank of the United States.”193
Controversy has surrounded Jackson’s actions ever since.
There is a good case to be made that his campaign against the
Bank may have contributed to the boom-and-bust swings of the
American economy in the following decades. There is little doubt
that a sophisticated market economy needs a central bank.
Without one, politicians will be subject to the temptation to
increase the money supply, which will in turn increase inflation
and appeal to the part of the population that owes debts. The
problem for many developing economies is keeping politics out of
the bank. The problem for Jackson, however, was to keep the
Bank out of politics. He had to take on the Bank, because it had
become a renegade institution that used its special economic
position to interfere in political elections. It was as if today’s
Chairman of the Federal Reserve, Ben Bernanke, put Senate
Majority Leader Harry Reid on the payroll and funded John
Kerry’s 2004 presidential campaign. Jackson’s greatness did not
come from destroying a crucial part of America’s financial
architecture, but in fighting an agency of the federal government
that was trying to control the political process for its own benefit.
It would have been impossible for Jackson to prevail had he not
exercised his constitutional powers of the veto, removal, and law
enforcement against the wishes of Congress.
IV. THE TARIFF
Jackson’s other great achievement again drew upon his
constitutional powers, but not in defense of the Presidency.
Instead, he drew upon the power of his office to protect the
Union. Early indications would not have placed Jackson in the
camp of nationalists. With regard to Indians, Jackson ended
plenary federal control over policy and recognized the right of the
states to regulate. In his veto of the Bank, as well as several
improvements bills, Jackson followed a limited view of federal
powers which outdid even Jefferson in devotion to strict
193. Id.
562
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construction. But when Jackson saw the rising threat of
secession, he did not hesitate to stretch the powers of his office to
their furthest extent to preserve the Union.194
The threat came from the small state of South Carolina,
which opposed national tariff rates. Like the national bank, the
political importance of the tariff may be difficult to grasp today.
The Federal Reserve has placed the Bank’s significance beyond
question, but the tariff is most noticeable today for its absence—
the success of the American-supported GATT, NAFTA, and WTO
agreements has rendered the tariff a rather trivial matter. But
in antebellum America, the tariff was an issue over which some
were willing to die and others to break up the Union.
Southerners deeply opposed the Tariff of 1824, which enacted
steep duties on manufactured imports.195 It was promoted by
Clay as part of his “American System” to protect domestic
manufactures and promote internal improvements such as roads
and canals.196 The tariff hit the South’s economic interests hard;
planters had to export raw material, primarily cotton, into the
competitive world market, but had to purchase finished products
in the home market where tariffs kept prices high. Some
southerners believed the Constitution prohibited taxation for
purposes other than raising revenue, and that one part of the
nation—the North—could not benefit from taxes at the expense
of another. In 1828, a bill that raised rates became known in the
South as the “tariff of abominations” and sparked secessionist
rallies in several Southern cities.197
South Carolinians rallied around the idea of “nullification.”
Developed in secret by Calhoun, nullification maintained that the
states each retained their independent sovereignty and that the
194. For historical background on the political and economic issues
surrounding the tariff, see HOWE, supra note 1, at 395-410; RICHARD ELLIS, THE
UNION AT RISK: JACKSONIAN DEMOCRACY, STATES’ RIGHTS, AND THE
NULLIFICATION CRISIS (1987).
195. See WILENTZ, supra note 1, at 63.
196. See id.
197. Id.
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Constitution was an agreement between them.198 No single
American people created the Constitution as their governing
document. Majority rule through the Constitution could not
override state sovereignty.
If a majority imposed an
unconstitutional law on a single region, a state could “nullify” the
federal law within its borders. Historians argue about the
origins of nullification, but there can be little doubt that it
strongly echoes Jefferson’s claim, made in the Kentucky
Resolves, that a state could oppose the implementation of the
Alien and Sedition Acts. Calhoun similarly believed that South
Carolina could refuse to enforce an unconstitutional tariff while
it sought redress through the national political process. If those
efforts failed, Calhoun believed, a state could consider secession.
South Carolina adopted a legal brief defending nullification,
secretly drafted by Calhoun and published as the South Carolina
Exposition and Protest.199 Its simple conclusion was that states
possessed the sovereignty to veto actions of the federal
government.
This question prompted one of the greatest debates ever to
occur in the Senate—between Webster and South Carolinian
Robert Hayne.200 After Hayne argued in favor of a state
sovereignty independent of the Constitution, Webster gave his
well-known speech defending the importance of the Union. It
ended with the famous words, “Liberty and Union, now and
forever, one and inseparable.”201 Jackson made his own views
clear on nullification at a political banquet in honor of Thomas
Jefferson in April 1830, at which both Jackson and Calhoun
198. See id. at 63-64.
199. John C. Calhoun, Exposition and Protest (Dec. 19, 1828), in UNION AND
LIBERTY: THE POLITICAL PHILOSOPHY OF JOHN C. CALHOUN (Ross M. Lence ed.,
1992).
200. It is difficult to escape the conclusion that the real issue behind
nullification was not the tariff, but slavery. If a numerical majority in the
North could enact a tariff over Southern objections, Southerners asked, what
would prevent it from eradicating slavery too.
201. Daniel Webster, Speech on Mr. Foot’s Resolution, in 2 AMERICAN
ELOQUENCE: A COLLECTION OF SPEECHES AND ADDRESSES BY THE MOST IMMINENT
ORATORS OF AMERICA 899 (Frank Moore ed., 1857).
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appeared. Held by Southern and Western Congressmen opposed
to the tariff, Jackson had come ready to take on nullification and
was already nearing the break with Calhoun. Several preselected speakers gave increasingly inflammatory toasts in favor
of state sovereignty. When the President’s turn came, all became
silent to see what position he would take. As always, Jackson
left no doubt about where he stood. “Our Union,” he declared, “it
must be preserved.”202 Calhoun followed. In the midst of a
rambling toast, the Vice President responded “The Union, next to
our liberty the most dear. May we all remember that it can only
be preserved by respecting the rights of the States, and
distributing equally the benefit and burden of the Union.”203
Jackson had declared war on nullification. Although perhaps
in conflict with his views on the Bank and internal
improvements, his defense of the Union made sense because of
his elevation of democracy as his guiding principle. If the
majority of the people spoke through their elected
representatives, he believed, a state had no right to frustrate
their will. The Union had been the product of the Revolution, in
which Jackson had risked his life as a young boy, and to which he
had lost his mother and brother. He was not about to see it
broken by a state, even the state of his birth. “There is nothing I
shudder at more than the idea of the separation of the Union,” he
wrote in 1828.204 Although he firmly believed that the powers of
the federal government were limited and that the states were to
exercise all others not granted, Jackson believed even more so in
the permanency of the Union. State sovereignty could not
become an excuse for secession.
Jackson hoped to reach a compromise as the election of 1832
neared.
Without admitting the legitimacy of the South’s
grievances, he successfully urged Congress to enact a new bill
that reduced tariffs. The national debt was being steadily
reduced, and soon the revenue from the tariff would no longer be
202. WILENTZ, supra note 1, at 65 (emphasis added).
203. JAMES PARTON, LIFE OF ANDREW JACKSON 283 (1888).
204. WILENTZ, supra note 1, at 64.
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needed. A mere month after Jackson won reelection, South
Carolina responded by holding a convention that declared the
1832 law void, and threatened secession should the government
enforce it. Jackson responded with a two-front strategy, one
political and one constitutional. In his Annual Message to
Congress on December 4, 1832, Jackson offered a political
compromise. Tariff protections “should not exceed what may be
necessary to counteract the regulations of foreign nations and to
secure a supply of those articles of manufacture essential to the
national independence and safety in time of war.”205 There was
“no reason to doubt” that domestic industry was “beneficial to our
country,” and he acknowledged that “large capital” had been
invested in reliance on the tariff. Nonetheless, investors and
producers had no right to expect “that the people will continue
permanently to pay high taxes for their benefit, when the money
is not required for any legitimate purpose . . . .”206 In a nod to
South Carolina, Jackson also criticized a high tariff as tending
“to beget in the minds of a large portion of our countrymen a
spirit of discontent and jealously dangerous to the stability of the
Union.”207 He proposed that Congress study a gradual reduction
of rates.208 To Jackson, the policy issue—how high tariff rates
should go—was always open for bargaining.
The Union, however, was non-negotiable. Jackson made this
clear six days later with an extraordinary proclamation. He drew
on his constitutional powers “for preserving the peace of the
Union and for the execution of the laws” to suppress
nullification.209 The American people, he said, spoke as one in
electing the President; the Presidency, not the legislature,
205. Andrew Jackson, Fourth Annual Message to Congress (Dec. 4, 1832), in
2 MESSAGES AND PAPERS OF THE PRESIDENTS 598 (James D. Richardson ed.,
1896).
206. Id.
207. Id.
208. Id.
209. Andrew Jackson, Proclamation (Dec. 10, 1832), in 2 MESSAGES AND
PAPERS OF THE PRESIDENTS 641 (James D. Richardson ed., 1896) [hereinafter
Jackson, Proclamation].
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represents the people as a whole.210 On behalf of the nation,
Jackson left no doubts about his position on nullification.
Nullification was “incompatible with the existence of the Union,
contradicted expressly by the letter of the Constitution,
unauthorized by its spirit, inconsistent with every principle on
which it was founded, and destructive of the great object for which
it was formed.”211 He made short work of South Carolina’s
criticism of the tariff laws. He denied that a state could pick and
choose which federal laws to enforce. Even if the Supremacy
Clause had not expressly provided for the superiority of federal
law, it was inherent in the creation of the federal system where
the central government received exclusive authority over
enumerated subjects. “Our Constitution does not contain the
absurdity of giving power to make laws and another to resist
If a single state could block federal law, the
them.”212
Constitution was useless.
“Vain provisions!
ineffectual
restrictions! vile profanation of oaths! miserable mockery of
legislation!”213
It was no defense to claim that the tariff affected one region
more than another. Every law impacts states and regions
differently. On a point dear to him, Jackson suggested that the
War of 1812 would have had a different outcome had states
nullified laws that impacted them unequally—a veiled reference
to the talk of secession that had swept New England when the
war went badly.214 It did not matter that Congress wanted to
spend the money on unconstitutional projects, such as internal
improvements, which Jackson himself had vetoed.
What
mattered was whether Congress’s act in passing the tariff was
constitutional, not whether its motive was.
For Jackson, the question boiled down to what came first, the
states or the nation. Only if the Constitution was merely a
210.
211.
212.
213.
214.
3 REMINI, JACKSON, supra note 1, at 21.
Jackson, Proclamation, supra note 209, at 643 (emphasis in original).
Id. at 645.
Id. at 646.
Id. at 642.
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league, and the nation just an agreement of the states, could a
state choose to withdraw or change the terms of the contract.
But if the United States were a nation, representing the people
directly, no state could set itself apart from the Union and its
laws. For the general who had risked his life as a boy in the first
war of independence, and who stopped a British invasion in the
second, the answer was clear. Even before the Declaration of
Independence, Jackson observed, “we were known in our
aggregate character as the United Colonies of America,” and “[w]e
declared ourselves a nation by a joint, not by several acts . . . .”215
The states had transferred parts of their sovereignty over issues
such as war and peace to the federal government, and the
allegiance of their citizens to the nation. No state could place
itself above that act of union. Nullification was merely a
“[m]etaphysical subtlety, in pursuit of an impracticable theory,”
actually designed to destroy the Union by forcing the nation to
depend on the goodwill of individual states.216
Nullification struck at the very heart of Jackson’s program,
the defense and expansion of majoritarian democracy. “The
Constitution of the United States,” he wrote in the Proclamation,
“forms a government, not a league . . . .”217 In that government,
“all the people are represented,” and it “operates directly on the
people individually, not upon the States . . . .”218 Because of this
direct link between the people and the Union, the national
government and its leaders could not arbitrarily choose to ignore
the Constitution and give up powers to the states, nor could it
allow a state to fence itself off from federal law. “[S]uch secession
does not break a league, but destroys the unity of a nation; and
any injury to that unity is not only a breach which would result
from the contravention of a compact, but it is an offense against
the whole Union.”219 Secession, which Jackson believed was the
real movement behind nullification, directly contradicted
215.
216.
217.
218.
219.
568
Id. at 643.
Id.
Id. at 648.
Id.
Id.
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American nationhood. “To say that any State may at pleasure
secede from the Union is to say that the United States are not a
nation.”220 As Remini observes, Jackson was the first major
American statesman to argue that the Union was a perpetual
entity.221 Lincoln would owe much to Jackson’s theory of the
Constitution, the Presidency, and the Union.
Jackson’s conclusion followed his strategy of seeking political
accommodation while preparing for legal and even military
confrontation. He appealed to South Carolina’s citizens to put
aside thoughts of disunion. Jackson addressed them as “[f]ellowcitizens of my native State.” They were being deluded by their
leaders, and he warned them as “a father would over his children
whom he saw rushing to certain ruin.”222 He appealed to their
patriotism: “Carolina is one of these proud States; her arms have
defended, her best blood has cemented, this happy Union.”223
But Jackson left no doubts about what would happen if South
Carolina did not compromise. “Disunion by armed force is
treason.”224 No one needed a refresher on what Jackson had done
to the enemies of the United States. He would use all of his
constitutional powers to prevent nullification or secession. “The
laws of the United States must be executed,” Jackson declared.225
“I have no discretionary power on the subject; my duty is
emphatically pronounced in the Constitution.”226 The President
left little doubt that he would resort to military force if need be.
“On your unhappy State will inevitably fall all the evils of the
conflict you force upon the Government of your country.”227
Jackson promised that their defeat was certain.
[The Constitution’s] destroyers you can not be. You may
disturb its peace, you may interrupt the course of its
220.
221.
222.
223.
224.
225.
226.
227.
Id.
3 REMINI, JACKSON, supra note 1, at 22.
Jackson, Proclamation, supra note 209, at 652.
Id. at 654.
Id.
Id.
Id.
Id. at 654-55.
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prosperity, you may cloud its reputation for stability; but its
tranquility will be restored, its prosperity will return, and the
stain upon its national character will be transferred and
remain an eternal blot on the memory of those who caused the
disorder.228
More vigorous and aggressive words have never left a President’s
pen.
Jackson’s proclamation was greeted with widespread support
throughout the country, but left South Carolina unmoved. He
kept the pressure up through statements in the press attacking
nullification and defending the perpetual Union. Jackson moved
to cut off South Carolina politically, while preparing for military
action.
Three days after Jackson’s proclamation, South
Carolina’s Governor resigned to lead the state’s militia; he was
replaced by Senator Hayne. Calhoun was selected by the
legislature to enter the U.S. Senate. Twenty-five thousand South
Carolinians volunteered to fight. The legislature authorized the
governor to call out the militia and to begin a draft, and
appropriated $250,000 for arms.229 Jackson sent military troops
and a naval vessel to reinforce the federal bases in Charleston
harbor. He ordered the War Department to prepare three
divisions of artillery to move against the state the moment South
Carolina’s legislature acted to carry out nullification.230 In a
letter to a Union supporter in the state, Jackson promised that
the moment South Carolina used force, he would “call into the
field, such a force as will overaw[e] resistance, put treason and
rebellion down without blood” and arrest those guilty of treason
and rebellion.231 Jackson planned for 10,000 to 15,000 federal
troops to occupy Charleston within two weeks of an outbreak of
violence, and drafted an order calling up the military to defend
the Union.232
228.
229.
230.
231.
232.
570
Id. at 655.
3 REMINI, JACKSON, supra note 1, at 26.
Id.
Id. at 34.
Id.
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But rather than use military force immediately, Jackson
turned to Congress. Jackson preferred to leave military action as
a last resort, and instead wanted Congress to authorize law
enforcement officials to execute the customs laws and arrest
traitors. Congressional action would slow down the rush to a
confrontation and serve as a forum to further isolate South
Carolina politically.
Jackson recognized that if he acted
unilaterally, he “would be branded with the epithet, tyrant.”233
He extended an olive branch on January 8, 1833 by proposing to
return tariffs to their 1818 levels. At the same time, Jackson
responded to South Carolina’s military preparations by
requesting a Force Bill. Jackson informed Congress that he
would continue the collection of federal customs in the port of
Charleston, and would move the location of the Customs House
to a more defensible fort, which had the effect of placing South
Carolina in the position of firing the first shot. He wanted
Congress to delegate broad authority to relocate these federal
offices, some technical changes to expand the jurisdiction of the
federal courts in the area, and a change in the Militia Act (the
same used by Washington and Jefferson) to allow him to
immediately call federal forces into action when federal law was
obstructed without the need for a proclamation. He labeled
South Carolina’s actions as “revolutionary in their character and
tendency, and subversive of the supremacy of the laws and of the
integrity of the Union,” a “usurpation of power,” and a threat to
the “liberties and happiness of the millions composing this
Union.”234 He closed by making clear, once again, that the Union
represented the people, he acted on behalf of that people, and
that a small minority could not secede from it. The Framers
“bequeathed to us a Government of laws and a Federal Union
founded upon the great principle of popular representation.”235
Jackson was called upon to discharge the duty of protecting the
233. Id. at 29.
234. Andrew Jackson, Message to Congress (Jan. 16, 1833), in 2 MESSAGES
AND PAPERS OF THE PRESIDENTS 620-21 (James
D. Richardson ed., 1896).
235. Id. at 631.
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Union. Congress must act to “solemnly proclaim that the
Constitution and the laws are supreme and the Union
indissoluble.”236
Going beyond appeals to sentiment and
patriotism, Jackson presented a robust theory about the origins
of the Union and the Constitution that would set an important
precedent for Lincoln and other Chief Executives.
The Force Bill conveyed no real authority that Jackson did
not already have, but served as a call for political support from
Congress should military action become necessary. Jackson’s
willingness to make a deal on the tariff, combined with a display
of indomitable will on the constitutional issue, produced a
political resolution. Congress remained the only national forum
where different regional interests could work out a bargain, and
it held the constitutional authority over tariff rates. South
Carolina postponed nullification while the Senate debated the
force and tariff bills. With the rare spectacle of Clay supporting
the Jackson administration, the Senate passed the Force Bill
after the few supporters of nullification left the Senate chamber
in protest.237 Clay then reached a bargain with Calhoun, in
which the former supported a reduction in rates in exchange for
the latter’s guarantee that South Carolina would repeal its
nullification law. No Force Bill would be required. Jackson’s
“promise” of war had convinced South Carolina’s representatives
to give way.238 The Clay-Calhoun tariff passed quickly at the
same time as the Force Bill, which received an overwhelming one
hundred vote majority in the House—a demonstration of
Jackson’s success in politically isolating South Carolina, not just
in the North and West, but in the South.
Historians consider Jackson’s victory in the nullification fight
his greatest achievement as President. He stopped a movement
to undermine the supremacy of federal law which could have
brought secession three decades early. Although he threatened
to resort to the military to enforce federal law, he kept pushing
236. Id. at 632.
237. 3 REMINI, JACKSON, supra note 1, at 37.
238. Id. at 38.
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for a political solution that would avoid conflict. His overall
policy preserved the Union. Jackson could not have reached this
result without a broad vision of his duty to enforce the law, of his
power as Chief Executive and Commander-in-Chief, and of his
role as representative of American democracy. He used this
robust understanding of the Presidency to pursue his
understanding of the United States as a Union of one people. A
President with a smaller conception of the office, like some of his
successors, might have disclaimed any role in settling the issue of
secession—after all, there is no enumerated power in the
Constitution giving the President the authority to settle political
disputes between the regions—and allowed South Carolina to go
its own way. Jackson’s genius was to harness the theory of one
Union and one American people to the rising forces of democracy.
But he could not have succeeded without a broad understanding
of his constitutional powers and the willingness to use them.
V. CONCLUSIONS
Jackson reconstructed the Presidency. His tenure in the
office was every bit as revolutionary as that of Washington or
Jefferson.
He did not restore the office by breaking its
constitutional limits, as critics claimed, but by fulfilling the
broadest visions of its designers. Jackson broke Congress’s
control and established the Presidency as the co-equal, competing
voice of the people’s wishes. The people, not Congress, would
select the President. It would be the people, not Congress, whom
Jackson represented. Critical to re-asserting the Presidency’s
independence was Jackson’s declaration of the right to interpret
the Constitution for himself, rather than defer to the Supreme
Court or Congress. In making the Presidency the primus inter
pares of the national government, Jackson drew upon the other
powers of his office, including control over the execution of the
law, removal of subordinates, and, of course, the veto pen.
At times, Jackson’s exercise of the Presidency’s constitutional
powers produced results that many would not agree with today.
Jackson almost single-handedly conquered Florida for the United
States and set the stage for Texas’s annexation, but he did so
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without legislative approval and support. While removing the
influence of the Bank from politics, Jackson’s war against Biddle
rejected the benefits of a national banking system. A central
bank, properly managed, could have smoothed out the boom-andbust cycles of the American economy in the decades to come. The
creation of the Federal Reserve Bank would have to wait until
Woodrow Wilson. Removal of the Indians allowed for broader
settlement of the Southwest, but it visited untold suffering on the
Cherokee and other tribes. His strong faith in American
expansionism did not include a place for Indians, and the results
of his policies remain one of the terrible examples of the nation’s
mistreatment of its own people.
Jackson’s exercise of the powers of his office did not go
without criticism and opposition. Like other Presidents who
have made broad claims of executive authority, Jackson was
attacked as a tyrant or dictator. Congress attempted to use its
powers to oppose Jackson, going so far as the only censure of a
President in American history, but the people sent Jacksonian
majorities to Congress that reversed these efforts. Nonetheless,
Jackson’s use of presidential power sparked a seismic political
response, the creation of the Whig political party whose platform
centered on executive restraint. Opposition to Jackson’s use of
presidential power restored the two party political system to
America.
Despite these negative aspects to his time in office, scholars
continue to regard Jackson as one of the ten greatest presidents.
His foreign policy expanded the frontiers of the nation and
opened land to economic development. Expansion did not trigger
the centrifugal forces of nullification. Jackson exercised the full
powers of his office to protect the Union and the supremacy of
federal law against the birth of secessionism. He democratized
the political system by ending the corruption of the Bank,
turning out long-time officeholders, and opening up politics to the
rising South and West. He reestablished the Presidency as an
independent center of power that could pursue policies in the
national interest, even if at odds with congressional wishes. He
could not have achieved any of the positives of his Presidency
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without a reinvigorated understanding of the constitutional
powers of the office. And he bequeathed to a future President,
Abraham Lincoln, an understanding of the office that allowed
him to save the Union when secession came.
Jackson’s restoration of the constitutional powers of the
Presidency reached its apogee under his protégé, James K. Polk.
Scholars also consider Polk to be one of history’s ten greatest
Presidents, and today he is ranked even above his former mentor.
Polk had served as speaker of the House during the Jackson
administration and was later elected governor of Tennessee.
When the leading candidates for the 1844 election, Van Buren for
the Democrats and Clay for the Whigs, both announced they
would not support the annexation of Texas, Polk went the other
way with Jackson’s blessing. Supporters of expansion at the
Democratic convention blocked Van Buren’s nomination, and
Polk emerged as the dark horse candidate. He sought to unify
the Democratic party by promising to serve only one term.
Whigs campaigned on his relative obscurity by asking “Who is
James K. Polk?” They received their answer when Polk won on
the platform of annexing Texas, occupying all of the disputed
Oregon territory (which would have included parts of Canada
between the contemporary borders of Washington state and
Alaska), and acquiring California. Polk prevailed in a close
election with 1.337 million votes to Clay’s 1.299 million, but by a
larger electoral college advantage, 170 to 105.239
Polk interpreted his election as a popular mandate, building
on Jackson’s example of the President as the tribune of the
people.240 Polk in particular coveted California’s fine harbors at
San Francisco and San Diego, which would aid American
merchants and provide the hemisphere’s finest ports for the
navy. The mandate for expansion was so evident that his
predecessor, John Tyler, used his lame-duck months in office to
engineer the annexation of Texas—and in a manner that further
239. See generally PAUL BERGERON, THE PRESIDENCY OF JAMES K. POLK 1-21
(1987).
240. Id. at 20.
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enhanced presidential power. Anti-slavery Democrats and Whigs
in the North had successfully blocked proposals to annex Texas
by treaty. With Polk’s support, Tyler simply turned about and
asked Congress to incorporate Texas by statute, which required a
simple majority in both houses.241 The use of a statute rather
than a treaty would set a precedent for future presidents, who
would resort to what would become known as congressionalexecutive agreements to adopt the Bretton Woods agreement or
the General Agreement on Tariffs and Trade.
Annexation of Texas almost guaranteed a confrontation with
Mexico, with which it shared an uncertain border. At first
attempting diplomacy, Polk sent envoys to purchase California
and the southwest territories. John Slidell, who would later
pursue another failed diplomatic mission on behalf of the
Confederacy, got nowhere.242 Even though Mexico was bankrupt
and had few settlers or troops in the territories, its leaders
uniformly viewed the sale of their northern territories as
dishonorable and refused to negotiate.243 Polk decided to turn to
military means, especially after rumors arrived that Mexican
forces were reinforcing California with British financial support.
In early 1846, the President ordered General Zachary Taylor to
move his forces of 1,500 troops into the disputed territory
between Mexico and Texas.244 Texas claimed that its territory
had reached as far south as the Rio Grande River, though as a
Mexican province and an independent state its control had never
extended beyond the Nueces River (about 150 miles farther north
from the Rio Grande). Most historians agree that Texas had
little claim to the Rio Grande border, but Polk was determined to
defend it with military force. He paired his efforts to create a
provocation in Texas with preparations to seize California. Polk
ordered naval units to be prepared to seize San Francisco in the
event of war. Army captain John Fremont, already in California,
241.
242.
243.
244.
576
Id. at 54-56.
Id. at 69-72.
Id. at 70.
Id. at 62-63.
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took a page from the Texas script and began to encourage
American settlers to revolt.245
Polk and his cabinet had decided to go to war even before
these plans in Texas and California had come to fruition.246 But
on April 25, 1846, the desired skirmish occurred between Taylor’s
patrols and Mexican forces.247 Taylor had moved all the way to
the Rio Grande directly across from superior Mexican forces, and
blockaded them. The surrounded Mexican troops tried to fight
their way out, with the loss of eleven Americans. Taylor attacked
the superior Mexican forces and defeated them in two battles on
May 8th and 9th. Two days after the news of the first skirmish
arrived in Washington, Polk sent a war message to Congress. It
misrepresented the facts to guarantee the majorities for war.
Polk claimed that he had deployed troops on the U.S. side of the
disputed territory and had ordered them to assume a purely
defensive posture. He asserted that Mexican forces had fired the
first shot in an offensive move onto American territory. “Mexico
has passed the boundary of the United States, has invaded our
territory, and shed American blood on American soil,” Polk told
Congress.248 In fact, “war exists, and, notwithstanding all our
efforts to avoid it, exists by the act of Mexico herself,” Polk
declared.249 He called upon Congress “to recognize the existence
of the war, and to place at the disposal of the Executive the
means of prosecuting the war with vigor, and thus hastening the
restoration of peace.”250
Polk had used his control over the military to create a
situation that had triggered a state of war. He could even have
argued that he had the inherent constitutional authority to wage
war without congressional cooperation, because of Mexico’s
245.
246.
247.
248.
Id. at 72-73.
Id. at 75-76.
Id.
James K. Polk, To the Senate and House of Representatives (May 11,
1846), in 5 MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897, at 442 (James
D. Richardson ed., 1896).
249. Id.
250. Id. at 443.
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attack. But he could not conduct significant offensive operations
against another nation without congressional authorization of a
new army of 50,000 and $10 million in funding. Polk’s demand
for support opened a sectional divide in Congress that organized
itself along partisan lines. Whigs in the North opposed the war,
which they viewed as an effort to expand the territory open for
slavery; it had become an article of faith in both the North and
South that slavery would perish if it could not expand.
Democratic leaders in the South and West overwhelmingly
supported the war, except Calhoun, who worried that the
addition of California and New Mexico as free states outweighed
the benefits for slavery in Texas. Approval for the recognition of
a state of war with Mexico prevailed in test votes by 123 to 67 in
the House, and 26 to 20 in the Senate. After heavy political
pressure from the White House, the final declaration of war was
attached to the funding and army bills and was approved with
only fourteen ‘opposing votes in the House and two in the Senate.
Whigs read public opinion as showing a strong majority in favor
of more territorial expansion, and made no serious effort to stop
the war. They continued to vote in favor of supplies for the
troops, while continuing to denounce Polk for starting the
conflict. But the conflict first opened up not just a dangerous
division between North and South, but aligned it with the two
political parties.251
Once war began, Polk took firm command of its operations.
California fell quickly to a remarkably small force of American
settlers and regular Army and Navy forces. He dispatched a
small force to the New Mexico territory, which also quickly
capitulated. Taylor’s army of 4,500 won a series of battles in
northern Mexico, capturing Monterey in late 1846. His campaign
culminated in the January 1847 Battle of Buena Vista, where he
defeated Santa Anna’s army of 20,000. Despite these military
successes, the war was not as easy and swift as Polk and his
advisors had anticipated. Mexico had rejected peace overtures,
and Mexican forces had put up stiff resistance in the North.
251. HOWE, supra note 1, at 731-91.
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They realized that Mexican politics would not permit a
negotiated settlement of the war. They decided to seek a more
absolute victory. A drive to Mexico City from the North was
impractical because of inhospitable terrain. Polk decided on a
risky amphibious landing at Veracruz on the Gulf of Mexico, to
be followed by a land advance to the Mexican capital. He had the
good sense to place in command Winfield Scott, who executed one
of the most successful American military campaigns in history.
With 10,000 troops, he captured the heavily defended Veracruz
in March 1847, twice defeated larger armies led by Santa Anna,
and captured Mexico City on September 14. The Mexican
government surrendered and General Scott imposed an
occupation government on the capital. Officers, such as Grant,
Lee, Jackson, Meade, Pickett, and McClellan, would all serve in
this “dress rehearsal” for the Civil War.252
Even as Polk’s war plans succeeded, he came under
increasing opposition at home. The 1846 elections returned a
narrow anti-war Whig majority. Polk greeted the new Congress
with a state of the Union message that claimed that Mexico had
started the war and that the United States had only acted in selfdefense. Mexico’s past wrongs against the United States and its
provocation of war required an “indemnity” – namely the
Southwest and California. Congress, Polk noted, approved the
war, and once declared, “it became my duty under the
Constitution and the laws to conduct and prosecute it.”253 To
Whigs who argued that the war should result in no new territory,
Polk responded “the doctrine of no territory is the doctrine of no
indemnity.”254 If adopted, he warned, it “would be a public
acknowledgement that our country was wrong and that the war
declared by Congress with extraordinary unanimity was unjust
252. See generally JOHN S.D. EISENHOWER, SO FAR FROM GOD: THE U.S. WAR
WITH MEXICO, 1846-1848 (2000).
253. James K. Polk, Third Annual Message (Dec. 7, 1847), in 5 MESSAGES
AND PAPERS OF THE PRESIDENTS, 1789-1897, at 534 (James D. Richardson ed.,
1896).
254. Id. at 538.
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and should be abandoned.”255
A young Whig freshman
congressman, Abraham Lincoln, rose to challenge Polk’s
accounting of events. He introduced a series of resolutions
questioning whether the Rio Grande had ever been understood as
the border of Texas, whether Mexico had started the war, and he
demanded that Polk provide information to Congress on “the
spot” where the first skirmish had occurred.256 In a speech on
January 12, 1848, Lincoln accused Polk of starting the war and
“trusting to escape scrutiny, by fixing the public gaze upon the
exceeding brightness of military glory.”257 Neither the House nor
the President, however, seems to have paid much attention to
Lincoln, though the House by 85-81 passed a resolution praising
General Taylor and declaring that Polk has started the war
“unnecessarily and unconstitutionally,” which the Senate
rejected.258
An anti-war Congress, however, could not prevent the
Commander-in-Chief from continuing to dictate wartime strategy
and operations. Even before the war had started, Polk had
decided how American forces would be deployed and defined their
objectives. After the capture of Mexico City, the President
unilaterally set occupation policy, which included holding the
capital, the major ports, and collecting tax revenues to offset the
cost of military operations. While Polk had hoped to squeeze the
Mexicans until they agreed to a favorable peace, he began to hope
for broader territorial concessions. With Mexico’s government
weak, its military almost non-existent, and its people unruly,
Polk now wanted Baja California, all of Mexico as far south as
Tampico (another 500 kilometers south of the Rio Grande), and
control of the isthmus of Tehuantepec for the construction of a
transcontinental canal. Polk’s vigorous control of the executive
power also led him to unilaterally govern the process for making
255. Id.
256. DAVID H. DONALD, LINCOLN 122-24 (1995).
257. Abraham Lincoln, From a Speech in the United States House of
Representatives on the Mexican War (Jan. 12, 1848), in THE LIFE AND WRITINGS
OF ABRAHAM LINCOLN, at 304 (Philip Van Doren Stern ed., 1940).
258. HOWE, supra note 1, at 797.
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peace. He chose the peace envoys without Senate advice and
consent, set the goals for the negotiations, and ultimately decided
to send to the Senate the 1848 Treaty of Guadalupe Hidalgo
(even though his negotiator, Nicholas Trist, had only won Polk’s
minimum terms). While it did not encompass all of Polk’s
territorial ambitions, it did transfer California, the future states
of Arizona, New Mexico, Nevada, and Utah, and the disputed
territory on the Texas border, in exchange for the paltry sum of
$15 million. Mexico lost 40 percent of her territory, while the
United States gained the land that would be the base for its
future world power.259 The treaty ended the Mexican-American
War on acceptable terms, without a long-term occupation or the
descent into chaos along the southern border.
Political opposition during the Mexican-American War,
however, also demonstrates the checks that Congress always has
available against the executive, even at the height of his wartime
powers. Polk had to agree to the terms of the Treaty of
Guadalupe Hidalgo for a reason—Congress would not support
the actions needed to conquer more land. Polk had wanted to
continue pressuring the Mexicans by continuing military
operations. Even after the fall of Mexico City, he had ordered
American troops to invade Baja California and had proposed
sending forces to annex the Yucatan peninsula. To expand
military operations beyond occupation duty, the President
needed more troops and more money. American forces had
suffered 10 percent casualties, with seven out of every eight
being lost to disease rather than battle. The costs of the war
were reaching $100 million. Congress refused. The Whigdominated Congress rejected Polk’s requests for new land and
excise taxes and increases in the size of the army. The Senate
ratified the terms of the peace treaty by 36-14. While some
Southerners wanted more land, the majority of Whigs wanted no
territory other than San Francisco. Congress would not have
allowed Polk to grab more of Mexico than he did.260
259. Id. at 796-811.
260. Id.
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Polk, like Jackson before him, sparked partisan opposition
with his energetic exercise of presidential prerogatives. Just as
Jackson’s war with the Bank led his opponents to organize a new
political party against him, Polk’s war was followed by a Whig
victory in the next presidential elections. Polk’s greater success,
in fact, sparked a more dangerous reaction. Support for the war
resided primarily in the South and among Democrats, while
opposition centered in the Northeast among Whigs. By opening a
huge territory to settlement and statehood, the MexicanAmerican War had made the future of slavery the central issue of
national politics. The war aligned North and South antagonism
over slavery with the political parties, which would remove the
ability of the partisan institutions to ameliorate sectional
tensions. The volatile mixture of new territory and political
inflexibility would set the conditions for the coming of the Civil
War.
Even though the treaty did not recognize even broader
American gains, it cemented Polk’s place among the nation’s
greatest Presidents. Polk secured Texas and added the land
between the Louisiana Purchase and the Pacific Ocean to the
United States. He increased the size of the nation more than any
President before or since. While these lands had been sparsely
settled under their previous owners, they would someday become
the most populous and dynamic states in the Union. Polk’s
vision not only gave the United States a continent-wide breadth,
but it also neutralized any natural enemies along its northern or
southern borders. With the addition of California and the
Northwest, the United States would be protected on both flanks
by wide oceans, and by the end of the century it would become a
great power in both Europe and Asia. Today, the expansion of
the United States seems inevitable, just as the propagandists for
“Manifest Destiny” believed. But it was not. Polk pursued a
high-risk strategy that prevailed thanks to the weakness of
Mexico and the superior fighting abilities of the U.S. armed
forces.261
261. Id. at 809.
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A President with a modest view of his constitutional powers
would have shrunk from provoking war over the Texas border,
not to mention invading Mexico. Only by fully exercising the
powers of the Presidency, as laid down by Andrew Jackson, could
Polk’s determination to reach the Pacific have been realized. As
Commander-in-Chief, Polk manipulated events to produce a war,
maneuvered Congress into funding it, and held sole control over
its goals and strategies. In the words of the leading historian of
the period, Daniel Howe, Polk “probably did as much as anyone
to expand the powers of the Presidency – certainly at least as
much as Jackson, who is more remembered for doing it.”
Overcoming the errors of Madison’s ways, the vigor and energy of
his leadership set the model for other Presidents in wartime.
Polk’s success was inextricably intertwined with the Jacksonian
understanding of a constitutionally energetic executive, and it
worked to the nation’s incalculable benefit.262
262. Id. at 808.
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LINCOLN’S CONSTITUTION
Walter F. Murphy*
I. INTRODUCTION.....................................................................585
II. THE SCENARIO ....................................................................585
III. THE CABINET DEBATES...................................................590
IV. DISENTANGLING THE ELEMENTS OF
CONSTITUTIONAL INTERPRETATION...........................608
I. INTRODUCTION
This paper is one of many efforts to disentangle the always
complex and sometimes mysterious elements that comprise the
enterprise of constitutional interpretation. To further that end, I
offer an imaginary scenario of Abraham Lincoln’s efforts to cope
with a pair of substantive problems of constitutional
interpretation that, during the first year of his presidency,
almost arose, but did not so arise—at least in the form presented
here. First, what is the reach of a public official’s constitutional
duty to preserve national unity and integrity? Second, as a
general principle of constitutional democracy, are there limits,
other than those the constitutional text itself specifies, to
legitimate changes in the fundamental order?1
II. THE SCENARIO
In December 1860, after Lincoln won the presidential
election, South Carolina seceded from the Union. Within two
* McCormick Professor of Jurisprudence (Emeritus), Princeton
University. I initially gave this paper at a colloquium at the University of New
Mexico School of Law. A shorter version appears in Lincoln’s Constitution, in
ESSAYS IN HONOR OF SAÚL LITVINOFF 633-58 (Olivier Moreteau et al. eds., 2008).
I am indebted to Sotirios A. Barber for a careful critique of the manuscript.
1. On numerous occasions I have wrestled with this question. See, e.g.,
WALTER F. MURPHY, CONSTITUTIONAL DEMOCRACY: CREATING AND MAINTAINING A
JUST POLITICAL ORDER ch. 15 (2006).
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months, all the other states of the lower South followed. On
March 3, 1861, the House and Senate, by the required two-thirds
vote, sent to the states what could have become the Thirteenth
Amendment to the U.S. Constitution. That proposal had been
part of an omnibus package designed by a joint congressional
committee to effect a compromise between the North and South.
When the broader set of resolutions failed, Representative
Thomas Corwin, a Republican from Ohio, suggested cutting from
that package a simple and single constitutional amendment.
Thus, the bill was dubbed the “Corwin Amendment.” Outgoing
President James Buchanan happily—if unnecessarily—signed
the one-sentence resolution: “No amendment shall be made to the
Constitution which will authorize or give to Congress the power
to abolish or interfere, within any State, with the domestic
institutions thereof, including that of persons held to labor or
service by the laws of said state.”2 Although as a state legislator
Abraham Lincoln suggested a similar proposal3—one that, by its
own terms, would not necessarily have run in perpetuity—he was
of two minds about the Corwin Amendment. Many Republican
legislators, however, thought he was favorably disposed and
voted for it.4 Secretary of State-Designate William Seward,
whom Southerners had often characterized as a rabid
abolitionist, believed that the new President’s public
endorsement of this Amendment would appease Southern
leaders. He persuaded Lincoln not only to tone down some of the
Unionist rhetoric in the Inaugural Address, but also to cite the
proposed Amendment as evidence of the Administration’s good
faith. In his Address, Lincoln stated that, “holding such a
provision to now be implied constitutional law, I have no
objection to its being made express, and irrevocable.”5
2. 1 BEN PERLEY POORE, THE FEDERAL AND STATE CONSTITUTIONS,
COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE UNITED STATES 24 (2d ed.
1878).
3. DAVID H. DONALD, LINCOLN 63-64 (1995).
4. DAVID M. POTTER, THE IMPENDING CRISIS, 1848-1861, at 550 (Don E.
Fehrenbacher ed., 1976).
5. Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in 4 THE
COLLECTED WORKS OF ABRAHAM LINCOLN 262, 270 (Roy P. Basler ed., 1953)
[hereinafter COLLECTED WORKS].
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It was not to be, however. The neo-natal Confederate
government, especially officials in Charleston, South Carolina,
were not appeased. Even if accepted at face value, the Yankee
offer to recognize the God-given rights of white Southerners to
own, work, buy, and sell black human beings had come too late.
On April 12, 1861, long before the process of ratification had an
opportunity to run its course, forces under the command of
General P.G.T. Beauregard fired on Fort Sumter and began a
civil war.
The secession of the lower South, the proposed Corwin
Amendment, Lincoln’s tepid endorsement of that proposal, and
the bombardment of Fort Sumter are all undeniable facts of
history. For the sake of analysis, however, let us assume that
the Confederates had pursued a more prudent strategy and
waited to see what would happen to the Amendment in utero.
Let us further assume that enough Northern and Mid-Western
state legislators were willing to placate the lower South by
joining Arkansas, Delaware, Maryland, Missouri, North
Carolina, Tennessee, and Virginia in ratifying the proposal,
thereby producing the necessary assent of three-quarters of the
states.
William Seward, now officially Secretary of State,
formally proclaimed the Thirteenth Amendment to be adopted.
Then, the Southern states that had seceded rescinded their
ordinances of secession. The Union was whole again.
“Finality,” however, Benjamin Disraeli had noted, “is not the
language of politics.”6 After a few months, legislators in New
England began to moan, nasally, that they had been rushed to
judgment. Vermont’s legislature soon adopted a resolution
revoking its assent to the Thirteenth Amendment. After Seward
refused to receive this new resolution, Vermont’s officials helped
a group of citizens file suit in federal circuit court, claiming that
the Amendment was invalid because the Constitution’s
guarantee to the states of a republican form of government
implicitly barred an unamendable constitutional amendment.
That court certified the issue to the United States Supreme
Court. The Justices, with only Justice John McLean dissenting,
6. Miscellanea, in THE WORKS OF BENJAMIN DISRAELI, EARL
BEACONSFIELD 104 (1904) (speech in House of Commons on Feb. 28, 1859).
OF
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said that, although the question the citizens of Vermont posed
was interesting, the Court need not address it. Once the
Secretary of State certified that a proposed amendment had
received the approval of three-quarters of the states, it became
part of the constitutional text. A state could not withdraw its
consent after the fact of incorporation.
While this litigation was proceeding, a fresh wave of
abolitionism spurred more and more state legislators publicly to
confess error. In fourteen of the thirty-six states, however,
slavery was legal. In those states there was no white public
sentiment of any magnitude to repeal the Corwin Amendment.
Thus, there was no way, at least in the foreseeable future, that
opponents could muster a two-thirds vote in Congress to begin
the process of re-amendment, if, indeed, the new Amendment’s
wording permitted re-amendment.
In early 1862, faced with what many Northern leaders saw
as an impossible constitutional and moral situation, governors
across the North and Midwest called their legislatures into
special session. Quickly, Connecticut, Maine, Massachusetts,
Michigan, Minnesota, New Hampshire, Vermont, and Wisconsin
adopted ordinances of secession, while the legislatures of Iowa,
New York, Pennsylvania, and Rhode Island were considering
similar measures. These new secessionists were proclaiming
that the Thirteenth Amendment had, in fact, made the
Constitution “a covenant with death and an agreement with
hell.”7 Lincoln’s opposition to slavery was well known. He
branded its very existence as a violation of the Declaration of
Independence’s assertions of natural rights and the equality of
all men, the fundamental principles on which the United States
was founded.8 Yet slavery existed in this country; and, through
7. Coined by William Lloyd Garrison, this phrase became the cri de coeur
of radical abolitionists who did not argue that slavery was itself a violation of
the Constitution. See generally MERTON L. DILLON, THE ABOLITIONISTS: THE
GROWTH OF A DISSENTING MINORITY (1975); HENRY MAYER, ALL ON FIRE: WILLIAM
LLOYD GARRISON AND THE ABOLITION OF SLAVERY (1998). SLAVERY ATTACKED:
THE ABOLITIONIST CRUSADE (John L. Thomas ed., 1965), offers a handy
compendium of some of the more famous abolitionist writings.
8. See, e.g., Abraham Lincoln, Speech at Springfield, Illinois (June 26,
1857), in 2 COLLECTED WORKS, supra note 5, at 404.
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the clever euphemism “persons bound to service,”9 the
constitutional text seemed to accept the legitimacy of this
“peculiar institution.”
To resolve his personal difficulties,
Lincoln repeated that he would not disturb slavery where it
legally existed but said that he would try to prevent its spread.
Even here, however, he was not consistent, sometimes preferring
pragmatism to principle. For example, Lincoln had opposed the
Kansas-Nebraska Act and Stephen Douglas’s doctrine of “popular
[white] sovereignty”10 in deciding whether slavery should exist in
any given territory. Nevertheless, he himself admitted: “Much as
I hate slavery, I would consent to the extension of it rather than
see the Union dissolved, just as I would consent to any GREAT
evil, to avoid a GREATER one.”11
Lincoln’s first choice was for one country without slavery—
but he preferred one country partly free and partly slave to two
countries, one free, the other slave. The second choice had now
returned in the most vicious form imaginable. To preserve the
Union, he might have to risk a civil war in which his opponents
would be the men and women who agreed with him on the moral
issue. Slave-holders would become his chosen people.
Thus, Lincoln now directly confronted the constitutional
problem that he had earlier finessed. As was to become his
practice, he sought advice from his cabinet. It was an odd group
that included his two principal rivals for the Republican
nomination, Secretary Seward and Secretary of the Treasury
Salmon Portland Chase, as well as a third, less ambitious, rival,
Attorney General Edward Bates.12 In 1861, Chase presumed
that he would act as the real president; planning to seek the
nomination again in 1864, he had not yet placed loyalty to, or
even respect for, Lincoln among his duties. The Secretary of War
was Simon Cameron, a slick, powerful politico from
Pennsylvania, who fit Agamemnon’s description of Achilles as
9. U.S. CONST. art. I, § 2.
10. 1 JAMES FORD RHODES, HISTORY OF THE UNITED STATES FROM THE
COMPROMISE OF 1850, at 477 (Harpers & Bros. Publishers 1896) (1892).
11. Abraham Lincoln, Speech at Peoria, Illinois (Oct. 16, 1854), in 2
COLLECTED WORKS, supra note 5, at 242, 270.
12. See DORIS KEARNS GOODWIN, TEAM OF RIVALS: THE POLITICAL GENIUS OF
ABRAHAM LINCOLN (2005) (for a superb study on President Lincoln’s Cabinet).
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“over-proud and under-honest.”13 Gideon Welles, Secretary of the
Navy, was both an able executive and an avid recorder of
events.14
Montgomery Blair of Maryland, son of Andrew
Jackson’s close friend Francis Preston Blair, Sr., was an efficient
and innovative Postmaster General. He was a staunch Unionist,
but was less antagonistic toward the South than his colleagues.
III. THE CABINET DEBATES
Let us imagine the discussion that might have occurred on
March 4, 1862:
Lincoln: I put it to you, gentlemen: Is my course set in
constitutional stone? If so, what is that course? Or does my oath
of office allow options? If so what are they?
Chase: You’re a lawyer, Lincoln. You know there are always
options.
Blair: I don’t understand. What options? Secession is a
violation of the Constitution. Lincoln was right. This Union is
perpetual—perpetual for the North as well as for the South.
Lincoln: I know, I know. But that does not tell me what I
should do, not even what I can do. Bates, you’re my Attorney
General. What’s your best legal answer?
Bates: I’m not sure that a best legal answer exists. One
thing is clear, at least to the Supreme Court and to me: When
13. WILLIAM SHAKESPEARE, TROILUS AND CRESSIDA act 2, sc. 3, II. 130-31 (K.
Deighton ed., 1906). Thaddeus Stevens voiced a similar opinion of his fellow
Pennsylvanian. When Cameron demanded an apology from Stevens, the
Congressman replied, “I once said I didn’t think Cameron would steal a red hot
stove, I take that back.” LINCOLN’S LEGACY: ETHICS AND POLITICS, at viii (Phillip
Shaw Paludan ed., 2008). Eventually, Lincoln fired Cameron, more for
incompetence than dishonesty.
14. DIARY OF GIDEON WELLES (Howard K. Beale ed., 1960), provides an
excellent day-by-day account of the workings of Lincoln’s administration and
especially the Department of the Navy.
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Seward certified that the Thirteenth Amendment had received
the assent of three-quarters of the states, it became part of the
Constitution, which means . . .
Chase: But did it truly become part of the Constitution?
Bates: What?
Chase: Don’t be obtuse, Bates.
Bates: Obtuse?
What do you mean obtuse?
Are you
implying that an integral part of the Constitution can be invalid?
Chase: I’m not implying it, Sir. I’m saying it. Apparently
you never took the time to learn what some of us have said and
written about how slavery itself is unconstitutional.15
Bates: This is hardly the occasion to invoke ethereal notions
of higher law.
Chase: Yes, I’ve lost that argument in court.16
Now my
15. See, e.g., JOEL TIFFANY, A TREATISE ON THE UNCONSTITUTIONALITY OF
AMERICAN SLAVERY (Negro Univs. Press 1969) (1852); LYSANDER SPOONER, THE
UNCONSTITUTIONALITY OF SLAVERY (1847). See generally ROBERT M. COVER,
JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS (1975); STAUGHTON
LYND, CLASS CONFLICT, SLAVERY, AND THE UNITED STATES CONSTITUTION (BobbsMerrill Co., 1967); JAMES M. MCPHERSON, THE STRUGGLE FOR EQUALITY:
ABOLITIONISTS AND THE NEGRO IN THE CIVIL WAR AND RECONSTRUCTION (1964).
16. The first case was Jones v. Van Zandt, which eventually went up to the
United States Supreme Court where the Court sustained a decision against
Chase’s client. 46 U.S. 215 (1847). (William Seward was one of Chase’s two cocounsel.) The second case, State v. Hoppess, 1 Ohio Dec. Reprint 105 (1845),
was argued in an Ohio court in 1845. Although both cases involved litigation
under the Fugitive Slave Act, Chase’s arguments were much broader, invoking,
as Lincoln later would, the Declaration of Independence, throwing doubt on the
legitimacy of slavery itself. See JOHN NIVEN, SALMON P. CHASE: A BIOGRAPHY
79-82 (1995); 5 CARL B. SWISHER, THE TANEY PERIOD 1836-64, at 549-54 (1974).
To some extent, Chase, as did many abolitionists, invoked “higher law.”
William Hosmer was responsible for one of the most systematic invocations of
higher law. See THE HIGHER LAW IN ITS RELATIONS TO CIVIL GOVERNMENT: WITH
PARTICULAR REFERENCE TO SLAVERY, AND THE FUGITIVE SLAVE LAW (Negro Univs.
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reasoning is simple and irenic, based on a legal principle that all
good lawyers can accept.
Lincoln: The only legal principle I know that all lawyers,
good and bad, accept is: “My client must pay my fee.” Are there
others?
Chase: Maybe not known to lawyers riding horseback across
the Illinois prairie, but other principles do exist. The one I had in
mind parallels the claim Vermont’s citizens put before the
Supreme Court—about each state’s being guaranteed a
republican form of government. The Justices did not answer the
query, but our legal system looks unfavorably on agreements in
perpetuity. An unchangeable change to an earlier contract is
invalid on its face.
Bates: That’s an interesting argument. I need to think about
it a bit.
Lincoln: Don’t make that a long bit. We don’t have much
time to get this horse back in the barn.
Blair: I don’t need to think about it at all. Chase, your
reasoning may be interesting to flea-picking lawyers; but no redblooded citizen will understand it, much less be persuaded by it.
Lincoln commended the Thirteenth Amendment to the people of
the South.
They endorsed it.
It’s become part of the
Constitution, period. We and the rest of the Union have to live
with it. Lincoln, you’ve got to persuade these Yankees to lie
down in the bed that they, with your encouragement, made.
Press 1969) (1852). He appended a constitutionalist argument: “A constitution
which reduces any portion of society to slavery, is only an instrument of plunder
. . . .To plead such a constitution as an excuse for slavery, is to add insult to
injury.” Id. at 175. In closing, he groped for the distinction between “a
constitution or a constitutional order,” on the one hand, and a “constitutional
text” on the other: “The abolition of slavery is demanded by the character of our
own government. . . . [T]he whole spirit and substance of our republican system
is directly hostile to slavery.” Id. at 203. Lincoln was similarly groping for such
a distinction when he appealed to the Declaration of Independence.
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Lincoln: And if I can’t persuade them? Fight them?
Blair: Andy Jackson would have jaw-boned them back into
line, but, of course, you’re not Andy Jackson. I’d suggest you ask
Welles and Cameron and General Winfield Scott, too, about what
they think our chances would be in a war. If they don’t believe
we can win, then let the Yankees go in peace. New Englanders
have been itching to leave the Union since the War of 1812.
Lincoln: Two nations—one slave, one free—and I’d be
president of the slave republic.
Chase: You could always resign and go back to Illinois.
You’d be a hero there and could run for president of the free
country.
Blair: He would have to move quickly, Chase. Your hat
would be in the ring before the ink on his resignation was dry.
Chase: That’s slander, Sir! Slander! But I’ll ignore you. I
recommend, Lincoln, that you call a special session of Congress
and send them a message that uses my explanation of why the
Corwin Amendment is invalid.
Seward: It’s still only a clever lawyer’s argument, Chase.
Even if it persuaded some people in the North, it would re-ignite
secession in the South. We would again face civil war.
Chase: I’m less sure. Remember, in every Southern state
there was considerable opposition to secession the first time
around. Does anyone have a better idea?
Seward: Perhaps. Perhaps I do. Lincoln could call a
conference of governors of all the states to meet somewhere,
anywhere except here in Washington. With Lincoln presiding,
these people could discuss our problems like intelligent adults.
We might produce another Great Compromise like those of 1787,
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1820, and 1850.
Chase: Forgive me, Seward, if I don’t laugh at your joke.
Southern governors despise Lincoln. Worse, I suspect governors
in the North are almost as emotional. These new abolitionists
have whipped public opinion into a frenzy as mad as the Fire
Eaters did in the slave states. It may well be, as you once put it,
Seward, that we face an “irrepressible conflict.”17 But, let us,
with as little offense to the South as honesty permits, renounce
this Corwin Amendment, which you persuaded Lincoln to
endorse.
Lincoln: Let me be clear, very clear. I and I alone am
responsible for what I said in my Inaugural. I now regret my
words about that Amendment, but the decision to speak them
was mine. Let us focus on the melancholy choice at hand.
Seward: Thank you, Lincoln, for accepting the blame here,
but I led you into temptation. For that I apologize to you and all
here present. I will append to my letter of resignation a more
formal and, I hope, more eloquent apology.
Lincoln: Seward, I do not want any talk of resignation from
you or from anyone else in this room. Please make your
substantive point.
Seward: Thank you, Lincoln, thank you. I do not have a
solution, only an escape tunnel that you might use. It is not far
from Chase’s proposal, but less legalistic. We pride ourselves on
having a government of the people; but this Amendment deprives
the people, now and in the future, of the authority to deal with
the most serious problem of our age. To the special session of
Congress, Lincoln, you can confess having been wrong about the
Corwin Amendment. (Incidentally, I suggest that from this point
forward, we use that term rather than “the Thirteenth
17. Seward had used that phrase in an impassioned speech on the floor of
the Senate in 1857. See GOODWIN, supra note 12, at 191 (emphasis removed).
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Amendment,” which gives that abomination more legitimacy
than I once thought it deserves.) Then you could say that, having
had time to reconsider the issue, that you have concluded that
the Amendment is destructive of the Constitution’s
architecture.18 Whatever the final fate of slavery in the states,
no amendment can deprive “We, the People”19 of the right
ultimately to decide any question through a later constitutional
amendment.20
Welles: Aren’t you contending that our Constitution, or any
such written instrument, cannot bind the people or their duly
elected representatives?
Doesn’t your argument apply to
protections against bills of attainder, ex post facto laws, and
establishment of a national religion?
Seward: You miss the point. The Constitution allows us,
“We, the People,” to enact amendments to increase, decrease, or
remove those protections as we see fit. The Corwin amendment
forever forbids “We, the People” from dealing with slavery within
the states, even by constitutional amendment. That difference is
real and it is fundamental.
Blair: And it illustrates precisely what the South fears, that
“the People” in the North as well as the new states being carved
out of the West will become so numerous and powerful as to
abolish slavery by fiat.
The “We, the People” whom the
18. As far as I can determine, Justice William O. Douglas was the first
jurist to use the term the Constitution’s “architectural scheme.” William O.
Douglas, Justice of the Supreme Court of the United States, Stare Decisis (Apr.
12, 1949), in 49 COLUM. L. REV. 735, 739 (1949).
19. U.S. CONST. pmbl.
20. Gentle readers will note that, although the Yale Law School had not
yet been created (Judge Tapping Reeve’s school in Litchfield, Connecticut was
free-standing), Seward was anticipating the arguments of Professors Bruce
Ackerman and Akhil Reed Amar. See WE THE PEOPLE: TRANSFORMATIONS
(1998); The Consent of the Governed: Constitutional Amendment Outside Article
V, 94 COLUM. L. REV. 457 (1994). Seward was neither a constitutional scholar
nor as voracious an opponent of slavery as many Southerners charged (in the
Senate, he had even supported a version of the Corwin Amendment), but he was
a very smart man, as citizens of Alaska as well as American consumers of oil
can attest.
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Constitution envisions is not a unified mass but a federation of
two sets of people, with Northerners accepting slavery in the
South and Southerners accepting Northern interests in
commerce. This proposal would try to put out a fire by throwing
fresh logs on it.
Welles: I am not an artful lawyer, only a practical New
England man—one who takes umbrage, Blair, at your
implication that we are not as loyal supporters of the Union as
your friends in Maryland, who openly advocated secession only a
few months ago. It seems to me, however, that Lincoln could tell
this special session of Congress that he took an oath to support a
Constitution that did not include the Corwin Amendment. He
doesn’t feel bound by that oath to support a Constitution that he
now realizes has been fundamentally changed. That might
dissuade our separating brethren in the North.
Blair: At the cost of infuriating Southerners. They would
look on such a statement, and rightly so, as a breach of faith.
With good reason, they would believe that they had been tricked.
That sentiment would surely incite rebellion.
Lincoln: I was conflicted about the Corwin Amendment. My
moral sense told me it was wrong; my practical political sense
told me that endorsing it might help prevent a civil war. What I
said, I confess, was said in the expectation that it would not be
adopted. I made not one, but two mistakes. The first was to say
anything positive about a proposal without having carefully read
it and considering how it did or did not fit with my basic moral
principles. The second was to be insincere. I hoped it would fail,
but that the South would accept my words as reasons to remain
in the Union. I was, I suppose, guilty of trickery against my own
morality as well as against others’ expectations—a horrible
example of the cost of acting as if the end justifies the means.
Chase: Is there a point to this mea culpa, Lincoln, besides
trying to cleanse your soul of sin?
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Lincoln: Yes, there is. The more I have thought about our
situation, the more I have understood that I have to risk civil war
to preserve both the Union and the Constitution. And if war is
necessary to preserve this Union, fight I will. I pray that the
entire people of this country, North and South, will make no
mistake about that. As a practical matter then, the question may
well become on which side would I fight. We cannot divorce law
and politics from morality in our judgments. But, as much as I
aspire to a union of the three in practice, I cannot will that unity
into existence. That was why I have compromised on slavery. If
I could not eradicate it, I could stop its spread. Although I do not
believe that we should fight a war to end slavery, I will not fight
a war to preserve slavery, because this nation cannot do so under
the law of the Constitution or the law of God.
Chase: For God’s sake and our own, Lincoln, leave the law of
God out of this. We’re having enough difficulty with the law of
man.
Cameron: If you’re seeking clarity, Lincoln, you should be
clear that you are speaking of the Constitution as you interpret
it, not as the document itself reads.
Lincoln: Yes, as I interpret the Constitution.
In my
inaugural, I interpreted the Constitution: “I hold, that in
contemplation of universal law, and of the Constitution, the
Neither the word
Union of these States is perpetual.”21
“perpetual” nor any synonym appears in the document itself.
Cameron: True, but what you said then is a reasonable
inference from the text’s words. Now you go much, much further,
claiming you can interpret those plain words into nothingness.
We may regret it, but those words recognize slavery as
legitimate: First, by setting it up as means of calculating how
many representatives in Congress a state should have; and
second, by acknowledging an obligation of the state and national
21. Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in 4
COLLECTED WORKS, supra note 5, at 264.
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governments to respect the property rights of slave owners to
recapture their run-aways.
Lincoln: Yes, the text says those things.
Cameron: I don’t think that even the Supreme Court could
legitimately interpret the Constitution as you propose. And what
that tribunal cannot do, you surely cannot. You are claiming too
much power, Lincoln, much too much.
Blair: Wait a moment, wait. I disagree, disagree absolutely,
with the substance of Lincoln’s interpretation of the Constitution.
Nevertheless, the president is a legitimate constitutional
interpreter. Remember Andy Jackson’s statement that he took
an oath to support the Constitution as he read it, not as
somebody else did. He was following a script that his Attorney
General, Roger Brooke Taney, our sitting Chief Justice, had
written.22 And they were right. Reread the Constitution.
Judicial review is a reasonable deduction from its plain words.
But it does not follow either from the legitimacy of judicial review
or from the text itself that judges have a monopoly on
constitutional interpretation or that their interpretations bind
Congress or the president. Cameron, you forget that Judge
Gibson of your state pointed out three decades ago that judges
are not unique in taking an oath to support the Constitution. So
does every public official.23 My brother was counsel for the losing
side in Dred Scott, but I do not agree with Lincoln’s criticism of
that ruling.24 Nevertheless, he was correct when he spoke about
22. CARL BRENT SWISHER, ROGER B. TANEY ch. 10 (1935). For the text of
Jackson’s veto message, see Veto Message from Andrew Jackson, President of
the United States of America, to the United States Senate (July 10, 1832), in 2
A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1897, at
581-82 (James B. Richardson ed., 1899). The essence of the Taney-Jackson
argument for “departmentalism” in authority to interpret the Constitution is
reprinted in American Constitutional Interpretation. WALTER F. MURPHY, JAMES
E. FLEMING, SOTIRIOS A. BARBER & STEPHEN MACEDO, AMERICAN
CONSTITUTIONAL INTERPRETATION 326-27 (3d ed. 2003).
23. See generally Eakin v. Raub, 12 Serg. & Rawle 330, 344-58 (Pa. 1825)
(Gibson, J., dissenting).
24. Scott v. Sandford, 60 U.S. 393 (1857). There is an enormous amount of
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that decision’s limited effect on future public policy.
Seward: You are right there, Blair, if wrong on Dred Scott.
professional literature on this case, the best of which, in my judgment, is still
DON FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW
AND POLITICS (1978).
In 2006, Mark A. Graber published a marvelously
provocative defense of Dred Scott as an example of necessary statesmanship in
a flawed world. See DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL
(2006). Graber sees Lincoln as much less willing to compromise on the issue of
slavery than I do, ignoring Lincoln’s willingness in 1841 to acknowledge the
absence of federal control over slavery in the states, his endorsement, albeit
tepid, of the Corwin amendment in 1861, his nullifying General Fremont’s
efforts early in the war, and blunting similar efforts somewhat later, to
emancipate slaves. See id. at 91-168. Lincoln saw a refusal to emancipate as
the price of keeping several of the border states in the Union. Even the
eventual Emancipation Proclamation, issued in part to make British assistance
to the Confederacy more difficult, freed only those slaves within states in
rebellion, hardly idealistic, especially given that in 1863 the Union Army
controlled little territory in those states. Despite our difference, I think Graber
succeeds in forcing us to distinguish, as Felix Frankfurter insisted we should,
between what is constitutional and what is good or wise. See Dennis v. United
States, 341 U.S 494, 524-25 (1951) (Frankfurter, J., concurring).
On the stump, especially during his debates with Stephen Douglas,
Lincoln often criticized Dred Scott; but he gave, in his first inaugural, the most
succinct and complete explanation of his views about its authority:
I do not forget the position assumed by some, that constitutional
questions are to be decided by the Supreme Court; nor do I deny that
such decisions must be binding in any case, upon the parties to a
suit . . . while they are also entitled to very high respect and
consideration, in all parallel cases, by all other departments of
government. And, while it is obviously possible that such decision
may be erroneous in any given case, still the evil effect following it,
being limited to that particular case, with the chance that it may be
overruled, and never become a precedent for other cases, can better be
borne than could the evils of a different practice. At the same time
the candid citizen must confess that if the policy of the government,
upon vital questions, affecting the whole people, is to be irrevocably
fixed by decisions of the Supreme Court, the instant they are made, in
ordinary litigation between parties, in personal actions, the people
will have ceased, to be their own rulers, having, to that extent,
practically resigned their government, into the hands of that eminent
tribunal.
Abraham Lincoln, First Inaugural Address (March 4, 1861), in 4 COLLECTED
WORKS, supra note 5, at 262, 268. This paragraph shows, I believe, that Lincoln
had not yet been able to articulate the relationships between constitutionalism
and democracy.
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Blair: Let’s put that case aside. What you propose to do,
Lincoln—and I cannot stress this enough—not only misinterprets
the Constitution, but also guarantees civil war, if, that is, you
carry through on your threat to use force to preserve the Union.
I beg you to consider that you may be wrong.
Lincoln: I have considered, and do now reconsider, that I
may be wrong. I have lost much sleep over this matter, as I
suspect each of you has. I have asked for your advice because I
need wisdom; and I hope that you, collectively and individually,
have more wisdom than I.
Seward: I fear we have disappointed you.
Lincoln: On the contrary, you have confirmed my belief that
I made a grievous error by saying anything at all about the
Corwin Amendment. If I were a more church-going man, I would
probably say that I sinned. Now I must stand up for a
constitutional principle, a constitutional principle that is also a
moral principle. I will not begin a civil war, but neither will I
shrink from it. I plan to ask to address the special session of
Congress, which Brother Chase has wisely advised I should
summon. I will explain my reasoning to them. I’ll outline it now
and invite your criticisms.
Chase: Then we shall vote on the issue?
Lincoln: I see no need for a vote. The only vote that would
count is my own.
Chase: That is highly irregular. You are the President, but
we are the presidency.
Lincoln: Perhaps, but only the President can make the
decisions of the presidency. The constitutional text says that I
“may require the Opinion in writing of the principal Officer in
each of the executive Departments.” I am not required to ask for
those opinions, only authorized to do so. I am certainly not
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bound by opinions that I am not obliged to seek.
Chase: You sometimes interpret the Constitution loosely and
sometimes strictly, as it suits your purpose.
Lincoln: Perhaps, but that is my interpretation and it is the
one that prevails within this room. Now, I will offer my plan and
invite—no—welcome, your criticisms. My message will assume
my proper role as an authoritative constitutional interpreter. I
will neither defend nor explain it. No more than the Supreme
Court or Congress, do I have a monopoly on that authority. It is
a power that all three branches share among themselves and
with the people of the Union. As Thomas Jefferson wrote, if the
executive brings a case before the courts, he is bound by the
judges’ constitutional interpretations, but he is not so bound
when other people file suit.25 As I said in my inaugural, the
President must respect a court’s judgment in specific cases
insofar as any action would affect parties to those cases. But I
also agree with Jefferson that, when deciding on future
governmental policy, the President need only accord judicial
decisions respectful consideration.
Now, to the substance of my speech. I shall begin with an
apology, especially but not solely directed toward the South, for
my support, however tentative, of the Corwin Amendment.
25. Little v. Barreme (The Flying Fish), 6 U.S. 170, 176 (1804), was a case
that involved an action brought in a federal court by a U.S. naval captain to
declare as a prize a ship the navy had seized during the Quasi-Naval War with
France. Eventually, the Supreme Court ordered the ship returned to its owners
because Congress had authorized the president to seize only ships bound to a
French port and The Flying Fish had been captured after leaving a French port.
Id. at 177-78. Some officials expected Jefferson, who in his famous letter to
Abigail Adams and his refusal to acknowledge the Court’s jurisdiction in
Marbury v. Madison, had claimed interpretive authority equal to that of judges,
would order the navy to ignore the decision. See Letter from Thomas Jefferson
to Abigail Adams (Sept. 11, 1804), in 11 WRITINGS OF THOMAS JEFFERSON 49, 5051 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1905); Marbury v.
Madison, 5 U.S. 137 (1803). Jefferson, however, distinguished between the
executive’s non-existent duty to obey a judicial order in a case brought by a
private citizen against the United States and one in which the executive, as
here, had asked a court for a ruling. 11 WRITINGS OF THOMAS JEFFERSON, supra.
In such latter instances, the executive was bound to obey judicial rulings.
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Second, I will explain that the Constitution of these United
States is not merely a charter for government. Rather, through
its Preamble and Bill of Rights, it also sets out the goals towards
which all our governmental policies must aspire. In so doing, it
expresses many of our ideals. Those ideals had been voiced in
the Declaration of Independence, which, by its proclamation that
all men are created equal, with rights to life, liberty, and the
pursuit of happiness, laid the foundation of our nation as well as
of the constitutional document. Through the Preamble’s explicit
statement of its purposes to “establish justice” and “secure the
blessings of liberty,” the Constitution echoes these ideals. The
Declaration is prior to the text produced at Philadelphia, prior
not only in time but in importance. Without the Declaration, the
Preamble to the Constitution makes small sense: the first eight
amendments become little more than a shopping list, and the
Ninth Amendment is only an ink blot. The Declaration is “the
sheet anchor of American republicanism.”26 Without it, we would
no longer be a city upon a hill, no longer a new Jerusalem,
providing the last best hope of all peoples on this earth. Without
it, our government might even authorize torturing prisoners—for
decent people an unthinkable moral outrage—possible only if we
deny that all men have inalienable rights. In sum, without the
Declaration as our lodestar, we would no longer be ourselves.
Blair: You’re eloquent, Lincoln, but eloquently wrong. The
men of 1787 understood that the Declaration’s libertarianism
and egalitarianism were leading to anarchy. They deliberately
did not mention the Declaration. They intended to set a fresh
course for this union of states.
Lincoln: I do not know, nor does any other man know, what
these people intended or understood except by reading the
document that they produced.
There were many, and
26. Abraham Lincoln, Speech at Peoria, Illinois (Oct. 16, 1854), in 2
COLLECTED WORKS, supra note 5, at 242, 266. Despite his reverence for the
Declaration, Lincoln often misquoted it to read that all men were created “free
and equal.” Id.
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contradictory, intentions and understandings.27 The thirty-nine
men who signed the document often disagreed with each other
and some of them, such as Hamilton and Madison, continued to
do so after ratification. These people argued on many points and
finally accepted compromises that did not fully meet any
delegate’s aims. Ratifying conventions, made up of more than a
thousand men, met separately in each state. And those delegates
not only disagreed with each other within their own conventions,
but also knew little or nothing about the debates in Philadelphia
or what people in other conventions thought the Constitution
meant or might come to mean.
I speak of what the Constitution and the Declaration of
Independence say and what, after careful deliberation, those
words tell me as the President of these United States facing a
concrete problem here and now. Some clauses, such as terms of
office for representatives, senators, and presidents, are definite
and clear. Others, such as establishing justice, only point us in a
general direction.
We may often disagree about specific
meanings;28 therefore, each interpreter must give solid reasons
for his conclusions while keeping his mind open to reasons given
by those who disagree with him. Even though differences will
always exist about the specific path those principles require us to
take, our general course is forever set toward justice, unity,
27. I have transposed into Lincoln’s words some of my own long-standing
opposition to the so-called method of “originalism” in constitutional
interpretation. I have argued that we should be respectful of the general
purposes voiced by the framers of 1787 and later amendments, but that we
cannot know what precisely they had in mind. Psychoanalyzing the dead,
especially when most of them left no written record of their “intentions” or
“understandings” and what they left is often contradictory (even Hamilton and
Madison, the principal authors of The Federalist, bitterly disagreed about what
they had created) may be fun—but it is unlikely to produce a firm basis of a
constitutional democracy. See Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 634-55 (1952) (Jackson, J., concurring). I first expressed my
opposition to originalism in 1959 and will continue it until my death. For
further analysis of this view, see CONSTITUTIONAL DEMOCRACY, supra note 1, at
476 n.59; The Constitution: Interpretation and Intent, 45 A.B.A. J. 592 (1959).
28. It could go without saying, but won’t, that Lincoln was making an
argument close to that which Ronald Dworkin (paralleling that of W.B. Gallie)
would later make. See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY ch. 4
(1977); Walter Bryce Gallie, Essentially Contested Concepts, in 56 PROCEEDINGS
OF THE ARISTOTELIAN SOCIETY 167 (1965).
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security, and liberty. Our difficulty today is how to reconcile
liberty and justice with unity and security.
Chase: I agree that the Declaration of Independence is part
of our broader constitution, as I’ve argued in the courtroom. But,
but . . . although I am not certain that your reasoning will be
understood, much less approved in the North, I am utterly
certain that its implications will be understood in the South;
clearly understood and emphatically—no—violently rejected.
Lincoln: I plan to make very explicit that the Corwin
Amendment is by its own terms a violation of the Constitution.
Whether I shall add Brother Chase’s reasoning to my own, or use
some other, I have not yet decided.
Seward: What olive branch can we then hold out toward the
South? Those people will literally be up in arms because
whatever set of reasons you use, you will seem to be siding with
the abolitionists as Southerners always feared you would.
Lincoln: I might add a version of Brother Chase’s argument
and reassure the South that my objection to the Corwin
Amendment is not that it recognizes slavery as a matter for each
individual state, but that the amendment itself is unamendable.
I could add that this administration has no intention of
interfering with slavery within any existing state, though we
would continue to oppose its spread in the territories.
Chase: Lincoln, Lincoln, I despair. You’re making two
arguments, one is redundant, the other will provoke immediate
civil war. If you say slavery is incompatible with the Declaration
of Independence and the Declaration is part of the Constitution,
you lose the South. If slavery is unconstitutional, the Corwin
Amendment is unconstitutional, perpetual or not. It’s redundant
also to claim that the amendment’s perpetuity is a constitutional
flaw. If you want to contest perpetuity, you must drop your
argument from the Declaration and adopt mine; that the Corwin
Amendment violates a basic principle of the law of contracts.
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You might even adopt Seward’s claim that this amendment
usurps power from “We, the People.” Your two-tailed kite won’t
fly.
Cameron: Before Brother Chase explodes, could I ask if we
could not somehow assure Southerners both that we had no
intention of now moving against slavery within the states that
allow it, and also promise that if some future administration did
so move, it would buy slaves’s freedom, not simply emancipate?
Chase: Good God, Sir, that proposal is stupid! Utterly
stupid! First, Southerners would never believe Lincoln. They
would spit on his assurances and immediately secede. Second,
even if they would stay in the Union, we cannot bind future
administrations. Third, if they would stay in the Union, we could
not afford to buy their slaves. As Secretary of an almost empty
Treasury, I can assure you that, today, the market value of
slaves in the South far exceeds our wealth. According to the
census of 1860, there are more than three and a half million
slaves in the South. In the lower states, the market value of a
good field hand exceeds $1,600. Of course, most slaves are
women, children, or elderly. The elderly may come cheaply but
not the rest. The children are the field hands a dozen years down
the road and the women are, by and large, the brood mares for
the breeding pens that slave owners maintain to keep their labor
supply up—when, that is, the plantation owners aren’t
themselves diddling the more attractive females. Those good
Southern boys aren’t going to set a low price on those
“commodities.” When we add the cost of moving freed slaves,
whether to Africa, Latin America, or our Western frontier, or
simply purchasing land in the South for them to work, $1,000 a
slave is a very, very low estimate of what the total cost would be.
That comes to at least $3.5 billion.29 The Treasury doesn’t have
that kind of money and neither, I suspect, do all American banks
combined. And fourth, even if in the distant future we became
prosperous enough to afford such huge outlays, what would we do
29. These figures are from ROBERT FOGEL & STANLEY L.
ON THE CROSS: EVIDENCE AND METHODS: A SUPPLEMENT 73, 103
ENGERMAN, TIME
(1974).
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with the freed men? I suggested re-settling many or most of
them, but that may not be possible. Leaving hordes of them to
tender mercies of their former masters doesn’t seem humane.
Africa and Latin America may not want them. The Western
climate may be too cold for them to bear. And most people in the
North agree with Southerners that Negroes are inferior and don’t
want to live around them. We just don’t think they should be
treated as property, to be bought and sold and whipped into
working for white men. Our motto is “Free Labor, Free Soil, and
Free Men,”30 not “let’s bring newly freed slaves into our
neighborhoods.” Negroes and whites cannot live together except
under conditions of force. The only thing that I see to do with
freed slaves is to ship them back to Africa.31
Lincoln: Alas, I fear Chase is right about my trying to ride
two horses at the same time. Sadly, he is also right about
finances as well as about feelings in the North toward Negroes.
Chase: Yes, if you demonstrate the terrible conflict between
slavery on the one hand, and the Declaration of Independence,
the Preamble to the Constitution, and the Bill of Rights on the
other, you cannot logically disavow any intention of abolishing
slavery. The most you can say is “not today,” and that offers the
South no assurance—unless you are willing to repudiate your
oath to support the Constitution.
You must change your
reasoning.
Lincoln: Do you really think that our Southern brethren will
not secede if I said it was only the claim to perpetuity that turned
me against the Corwin Amendment?
Chase: No one can be absolutely certain they would not
30. Chase had himself coined this phrase in 1848, addressing the Free Soil
party convention in Buffalo, NY. See NIVEN, supra note 16, at 110; see generally
ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN: THE IDEOLOGY OF THE
REPUBLICAN PARTY BEFORE THE CIVIL WAR (1970).
31. At this time, both Chase and Lincoln believed that re-colonization was
the best, perhaps the only feasible, outcome of eventual emancipation. See
DONALD, supra note 3, at 344-45; NIVEN, supra note 16, at 144.
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secede. But your basic constitutional argument insures secession
because it slaps Southerners in the face. Mine does not. Rather,
it offers close reasoning that all good lawyers in the South as well
as the North can accept. As for utilizing our joint belief about the
centrality of the Declaration of Independence, remember that
John C. Calhoun said it was flat wrong.32 His words have become
engraved in slave-owners’ Bibles. Sadly, that “mystic chord of
memory”33 has been severed. Even if Southerners did not despise
you, Lincoln, they would not accept any argument based on the
Declaration. Because they will believe that you earlier tricked
them and now insult them, they will fly into a wild fury. Those
people have a peculiar and fragile sense of honor.34 My reasoning
at least gives them an opportunity to save their honor and us an
outside chance of avoiding civil war.
Blair: No! I am absolutely certain that repudiation of the
Corwin Amendment for any reason whatsoever will immediately
trigger secession. And Southerners would believe that Northern
duplicity gave them the high moral ground.
Lincoln: Southerners think they hold the high moral ground
now because they do not see slavery as immoral.35 But, if slavery
32. See John C. Calhoun, Speech on the Oregon Bill, Delivered in the
Senate (June 27, 1848), in 4 THE WORKS OF JOHN C. CALHOUN 479-512 (Richard
K. Cralle ed., 1874). The first volume, containing Calhoun’s most famous
writings, A Disquisition on Government and A Discourse on the Constitution
and Government of the United States, was published in 1851 at Charleston, by
The Steam Powered Press of Walker and James. 1 THE WORKS OF JOHN C.
CALHOUN, supra, at 1.
33. Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in 4
COLLECTED WORKS, supra note 5, at 271.
34. See generally BERTRAM WYATT-BROWN, SOUTHERN HONOR: ETHICS &
BEHAVIOR IN THE OLD SOUTH (1982); KENNETH S. GREENBERG, HONOR AND
SLAVERY (1996).
35. Even some people who opposed the institution—such as John England,
the first Catholic bishop of the diocese of Charleston, Mary Chesnut, who was
the wife of James Chesnut, a U.S. Senator and later Colonel CSA on Jefferson
Davis’s staff in Richmond, and Mary Alston Pringle, the grand dame of that
city’s social elite—were uncomfortable with both slavery and emancipation.
Mrs. Pringle, who owned hundreds of slaves and kept thirty-six within her
house as servants, had the easiest moral problem: Although troubled by slavery,
she believed that Negroes were inferior to whites. Mrs. Chesnut was also cross-
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is not immoral, what is? Gentlemen, I thank you for your advice.
You have been most helpful to me in exploring the dark sea of
constitutional duty. My initial inclination was to interpret the
Constitution by looking to the ultimate goals and overarching
values to which our political system aspires. I do not reject such
a method; but, facing this particular crisis, perhaps I should
temper my idealism with prudence. And I must also proceed, as
Brother Chase has forcefully reminded me, with stricter
attention to logic as well as more sensitive concern for the tender
feelings of our slave-holding compatriots. I shall inform you of
my decision no later than tomorrow afternoon and circulate
among you a draft of my message to the special session. I would
appreciate your reading it and returning it to me as soon as
possible.
IV. DISENTANGLING THE ELEMENTS OF
CONSTITUTIONAL INTERPRETATION
We could continue our scenario by imagining Lincoln’s final
decision and his reasoning as he faces problems of reconciling not
pressured. Her social, economic, and political situation depended heavily on her
husband’s support of slavery (as well as his owning slaves), yet she was bitterly
anti-slavery, indeed, appalled by it. “I hate slavery,” she wrote. A DIARY FROM
DIXIE 114 (Ben Ames Williams ed., Harvard Univ. Press 1980) (1905). When
she saw a young mulatto woman being sold at auction, she remarked: “My very
soul sickened . . . .If you can stand that, no other Southern thing need choke
you.” MARY CHESNUT’S CIVIL WAR 23 (C. Vann Woodward ed., Yale Univ. Press
1993) (1981). On the other hand, she saw Negroes as distinctly inferior to white
people. A DIARY FROM DIXIE, supra, at xiii (As did Mary Pringle through her
copious correspondence, Mary Chesnut preserved through a diary a marvelous,
first-hand, account of life in the Old South. The edition published by Harvard
University Press includes only the years 1861-65, a wonderful but incomplete
version of her massive diaries.). Bishop England, a native of County Cork, may
have been the most enlightened, if for no other reason than that he had seen his
own congregation in Ireland subsisting as little more than serfs, obliged to work
the land for (often absentee) English landlords. But he, too, kept his opposition
quiet and even defended slave-owning members of his diocese as kind, loving
masters. Not until the final writing that he published in his diocesan
magazine, when he responded to the question whether he “was friendly” to
slavery, did he offer anything approaching a full explanation of his position: “I
am not [friendly]—but I also see the impossibility of now abolishing it here.
When it can and ought to be abolished was a question for the legislature and
not for me.” JOSEPH. L. O’BRIEN, JOHN ENGLAND, BISHOP OF CHARLESTON: THE
APOSTLE TO DEMOCRACY 152 (1934).
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merely what is just and what is possible, but also two peoples
who sharply disagree on a fundamental question of morality. It
is a disagreement that often permeates politics, ordinary as well
as constitutional. Because I shall try to plot Lincoln’s course in a
larger work of fiction and would not wish here to spoil gentle
readers’ eager anticipation, I return to this paper’s purpose of
deepening the understanding of constitutional interpretation.
Although my ability to control the scenario stacks the cards in
favor of my argument, this plot, or any similar plot—real or
fictional—demonstrates that there are certain basic questions
that all thoughtful constitutional interpreters must either
address or to which they necessarily assume answers: (1) Why
interpret?; (2) When to interpret?; (3) Who is/are the
authoritative interpreter(s)?; (4) What is it that is to be
interpreted?; and (5) How does/should the proper person or
persons perform that task?36 In the scenario at hand, all
members of the cabinet assumed the same answers to the first
two of these questions: When? Now, obviously, right now,
because crisis is at hand and will not wither away. Why?
Although the two sides disagree on many matters, the central
dispute is about slavery and the two opposing sides are tearing
the nation apart. Both seek to justify their conclusions through
differing constitutional interpretations regarding the nature of
the Union and the authority of the Corwin Amendment.
Answers to the other three queries had to be found, not
assumed.
Cameron raised the question: “Who is or are
authoritative interpreter(s) of the Constitution.” Lincoln’s reply
would not have pleased people who look principally to judges,37
36. I have explained ad infinitum (some critics would say, ad nauseam)
these questions and used answers to them as the basis of my normative theory
of constitutional interpretation. American Constitutional Interpretation is
organized around these questions and Constitutional Democracy summarizes
my views and cites some, but, mercifully, not all, of my writings on the subject.
See MURPHY, FLEMING, BARBER, & MACEDO, supra note 22; CONSTITUTIONAL
DEMOCRACY, supra note 1, at ch. 14 (note 11 in the Preface cites additional
writings).
For among the very best of recent works on constitutional
interpretation, see SOTIRIOS A. BARBER & JAMES E. FLEMING, CONSTITUTIONAL
INTERPRETATION: THE BASIC QUESTIONS (2007); see also INTERPRETING
CONSTITUTIONS: A COMPARATIVE STUDY (Jeffrey Goldsworthy ed., 2006)
(especially the articles by Peter W. Hogg and Donald P. Kommers).
37. See, e.g., Larry Alexander & Frederick Schauer, On Extrajudicial
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but it fits American practice both before and after his
presidency.38
“What is the Constitution that is to be interpreted?”
According to this script, and in actual fact, Lincoln (and Chase,
too) thought that the U.S. Constitution somehow included the
Declaration of Independence and that this “greater” constitution
functioned as a store of values, a statement of purposes and
aspirations, and operated as a charter for government. Those
decisions shaped, even if they did not determine, answers to the
question of How to interpret. Lincoln rejected the use of history
as a snapshot, though he was not hostile to history as a moving
picture (had that notion made any sense to him).39 Initially, his
interpretive method might be called philosophical. Lincoln
searched for the fundamental values that the constitution,
Constitutional Interpretation, 110 HARV. L. REV. 1359 (1997); Larry Alexander
& Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 CONST.
COMMENT. 455 (2000) (for the articles to which the authors are replying, see
note 12 on page 458).
38. See MURPHY, FLEMING, BARBER, & MACEDO, supra note 22, at ch. 4. For
more detailed analyses of the competing authorities of presidents, legislators,
and judges as constitutional interpreters, see SOTIRIOS A BARBER, THE
CONSTITUTION OF JUDICIAL POWER (1993); WALTER F. MURPHY, CONGRESS AND
THE COURT (1962); CONSTITUTIONAL DEMOCRACY, supra note 1, at 463-71; KEITH
E. WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY: THE
PRESIDENCY, THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN U.S.
HISTORY (2007); Hadley Arkes, On the Moral Standing of the President as an
Interpreter of the Constitution: Some Reflections on Our “Current” Crises, 20
POL. SCI. 637 (1987); Paul Brest, The Conscientious Legislator’s Guide to
Constitutional Interpretation, 27 STAN. L. REV. 585 (1975); Walter F. Murphy,
Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter, 48
REV. OF POLS. 401 (1986). Constitutional Democracy, supra note 1, examines
practices in Canada, Germany, Ireland, and the United States and argues that
judicial supremacy in constitutional interpretation, where it has existed, has
not been a constant feature. Furthermore, I contend that it is unnecessary and
would, if it continuously existed, be counterproductive to the successful
maintenance of such political systems. Larry Kramer has made a case for
popular constitutional interpretation. See generally THE PEOPLE THEMSELVES:
POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004).
39. He was, however, quite willing to appeal to what he claimed was the
original understandings of members of the Continental Congress that issued
the Declaration of Independence, while refusing to speculate about what the
men of 1787-88 had in mind about slavery. See, e.g., Abraham Lincoln, Speech
at Peoria, Illinois (Oct. 16, 1854), in 2 COLLECTED WORKS, supra note 5, at 242,
256.
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Lincoln’s Constitution
broadly conceived, was trying to advance and then sought the
best way to further that quest. Others might call his method
purposive because he was attempting to move the nation toward
his understanding of the constitution’s basic goals,40 or even
idealistic because his conception of those goals was at times more
aspirational than actual.
In real life, Lincoln had strongly implied the reasoning
regarding the unconstitutionality of slavery that this scenario
spells out. “[A]ccording to our ancient faith, the just powers of
governments are derived from the consent of the governed. Now
the relation of masters and slaves is, PRO TANTO, a total violation
of this principle.”41 Because he was by nature a very prudent
man, he never, at least publicly, explicitly juxtaposed such
statements with his reasoning that the Declaration of
Independence was part of the broader American constitution. He
never took (or perhaps never had) the time to connect in a
systematic fashion his views of the Constitution and the
Declaration. Nevertheless, Lincoln’s reasoning ineluctably led to
the conclusion that slavery was itself unconstitutional. Many
Southerners understood where this logic led, which helps explain
why secession began as soon as he won the election.
The participants in this fictional debate disagreed, however,
all were deeply concerned with prudence, with any decision’s
immediate effect on the nation as well as its long-range impact
on the nature of the political system that would survive this
crisis.42 Purposive and prudential analyses, of course, can be
40. Compare the analysis by Aharon Barak, the President of the Supreme
Court of Israel, whose PURPOSIVE INTERPRETATION IN LAW (Sari Bashi trans.,
2005), begins with wills and contracts and works its way up to statutes and
constitutional texts.
41. Abraham Lincoln, Speech at Peoria, Illinois (Oct. 16, 1854), in 2
COLLECTED WORKS, supra note 5, at 266.
42. Readers who are attentive as well as gentle will have noticed that no
one speaks of constitutional democracy, an understandable omission because
that term did not come into scholarly vogue until the twentieth century and still
has not made it into the vocabulary or even the minds of those many public
officials who still foolishly refer to the American, Australian, Canadian,
European, Indian, Japanese, and now South African political systems as
“democracies.” Such readers will also have noted that the debaters speak of the
Union, but never of the United States of America or even of the United States.
Until after the Civil War, we were a nameless country. See SEBASTIAN DE
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considered as aspects of philosophical inquiry; but prudence
differs from, though does not necessarily conflict with, an
aspirational approach.43 Aspirations are concerned with what
should be in the future, while the latter is concerned with what
can be now or in the near future. Indeed, one might say that
Lincoln always combined these approaches, opposing slavery on
GRAZIA, A COUNTRY WITH NO NAME: TALES FROM THE CONSTITUTION (1999).
Before the Civil War, “the United States” typically demanded a verb in its
plural form. The Civil War and the formal constitutional amendments it
spawned fundamentally altered the nature of the previously existing federal
union, though not, I have argued and often think I was correct, the basic nature
of the nation’s political system. My contention is that those amendments, as
significant as they became, continued the country’s evolution toward
constitutional democracy. See MARK E. BRANDON, FREE IN THE WORLD:
AMERICAN SLAVERY AND CONSTITUTIONAL FAILURE 201 (1998); Walter F. Murphy,
Slaughter-House, Civil Rights and Limits on Constitutional Change, 32 AM. J.
JURIS. 1 (1987). The eminent historian, James M. McPherson, has argued that,
in the debate over the character of the American federation on the cusp of the
Civil War, Southerners were historically correct insofar as they focused on the
Constitution as it existed in 1787-88 and the immediately ensuing decades.
Antebellum Southern Exceptionalism, 29 CIV. WAR HIST. 230 (1983), reprinted in
JAMES M. MCPHERSON, DRAWN WITH THE SWORD: REFLECTIONS ON THE AMERICA
CIVIL WAR 1 (1996). Had the Union’s constitutional development stopped in its
first few decades, the Southern argument would have been valid in 1861. That
evolution, however, continued, driven in part, as McPherson points out, by the
early nineteenth century’s revolution in transportation, THE BATTLE CRY OF
FREEDOM: THE CIVIL WAR ERA 11-17 (1988), and the invention and rapid spread
of the telegraph bringing the country closer together. During the same period,
demands for federal aid to “internal improvements” (turnpikes, canals, and
railroads) and Southerners’ demands that the national government enact and
enforce fugitive slave laws against recalcitrant state officials as well as
individual citizens and also to pursue a greedily acquisitive foreign policy
toward Mexican and Cuban territory further fostered the importance of federal
power.
43. An aspirational approach to constitutional interpretation is at least as
old as John Marshall. For example, in McCulloch v. Maryland, he asserted that
constitutional interpreters had to keep in mind that they were construing
and/or creating guidelines for a developing nation that would, eventually at
least, stretch from the St. Croix River to the Gulf of Mexico and from the
Atlantic to the Pacific Ocean. 17 U.S. 316, 408 (1819). Later, Justice William J.
Brennan, Jr., would continue Marshall’s method, this time interpreting the
constitutional order as including the continuing development of the national
community’s moral standards. See generally The Constitution of the United
States: Contemporary Ratification (Oct. 12, 1985), in 27 S. TEX. L. J. 433 (1986).
With that much said, Sotirios A. Barber was the first modern scholar to baptize
the approach and to explore its utility and limitations. ON WHAT THE
CONSTITUTION MEANS 34-37 (1984).
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moral as much as on constitutional grounds, often ready to
prevent its spread, but loath to fight a nation-shattering war to
immediately extinguish it. The South’s belligerence would make
civil war necessary; secession and Northern military victory
would make it politically possible for Lincoln to fulfill the logic of
his moral and constitutional reasoning.
The cabinet’s discussion soon moved to an issue that connects
to both What and How: “What are the limits to valid
constitutional change?” Is the only criterion, as Postmaster
General Blair and Attorney General Bates suggested, conformity
to the procedures the document itself specifies? Or are there also
substantive limits? Clearly, a constitutional text may explicitly
forbid certain kinds of amendments, as does Germany’s Basic
Law, by prohibiting changes to its statements that human
dignity is inviolable and the political system must always be
federal. Lincoln enjoyed no such luxury, unless he explicitly
included the Declaration of Independence in the larger
constitution. The American document’s ban on prohibiting the
import of slaves before 1808 was not relevant here; and there was
no question of denying a state equal representation in the Senate
or ceding its territory without its consent. Instead, this scenario
has Lincoln groping for a coherent theory of constitutionalism
and its often tenuous relation to democracy. He was also
struggling to justify the premise that some parts of the
constitution broadly conceived—or to use the term that both
German Basic Law and the Constitutional Court employ, “the
constitutional order”—are more fundamental than others.
Combined with constitutionalism, such a hierarchy of principles
allows the possibility that a compromise or a mistake in drafting
may lead to a contradiction either in the original text or a later
In such instances, the more fundamental
amendment.44
principle trumps the less, and the latter may well be
unconstitutional. I think, though I cannot prove, this reasoning
is implied in Lincoln’s real-life elevation of the second paragraph
of the Declaration of Independence into the American
constitutional order.
44. The Southwest Case, BVerfGE 1, 14 (1951), translated in WALTER F.
MURPHY & JOSEPH TANENHAUS, COMPARATIVE CONSTITUTIONAL LAW 208ff (1977).
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We hope the specific issue of slavery will never again arise,
but we can still learn from the crisis of 1861. The abundance of
literature on the concept of constitutionalism45 would now allow
us more easily to make an intellectually overwhelming case
against constitutional amendments, simple legislation, or
governmental practices that severely restrict basic rights. We
might also be able to spell out more carefully than Seward did an
argument based on democratic political theory.46 In so doing, we
would be speaking of amending the constitutional order, not
merely the constitutional text, an order whose functions include
expressing certain ideals not merely as advice but as standards
by which to judge the legitimacy of public policy.47
45. I cite many of these works in my essay, Constitutions,
Constitutionalalism, and Democracy, in CONSTITUTIONALISM AND DEMOCRACY:
TRANSITIONS IN THE CONTEMPORARY WORLD 3, 20 n.1 (Douglas Greenberg ed.,
1993). See also DONALD S. LUTZ, PRINCIPLES OF CONSTITUTIONAL DESIGN (2006);
CONSTITUTIONAL DEMOCRACY, supra note 1, at 6-8 n.16-19.
46. For similar citations to much of the professional literature on
democratic theory, see my essay, Constitutions, Constitutionalism and
Democracy, in CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE
CONTEMPORARY WORLD, supra note 45, at 3, 20 n.1; CONSTITUTIONAL
DEMOCRACY, supra note 1, at 4-5 n.9.
47. For the best recent discussions of the validity of the Corwin
Amendment, see Mark E. Brandon, The “Original” Thirteenth Amendment and
Limits to Formal Constitutional Change, in RESPONDING TO IMPERFECTION: THE
THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 215 (Sanford V.
Levinson ed., 1995); A. Christopher Bryant, Stopping Time: The Pro-Slavery
and “Irrevocable” Thirteenth Amendment, 26 HARV. J. L. & PUB. POL’Y. 501
(2003). My own judgment, for what it is worth, is that the Amendment would
have been unconstitutional. If, in the extremely unlikely event such a proposal
would arise today, my reasoning would be based on constitutionalist grounds.
Such a change would (a) violate the normative basis of constitutionalism, the
great and equal dignity of all human beings; and (b) change the very nature of
the polity, thus requiring the community to exit from that constitutional order
and begin a fresh one. For 1861, the Amendment was unconstitutional on the
basis of a version of Seward’s argument for democratic theory. I would shift
because, in 1861, American development toward constitutional democracy was
not far enough along for my constitutionalist argument to have been
persuasive—correct, but not yet persuasive even to people like Lincoln, who
were still moving toward constitutionalism. Incidentally, I do not think the
United States has yet reached, and may never reach, the status of a full
constitutional democracy. For my arguments about the possibility of an
unconstitutional constitutional amendment, see Excluding Political Parties, in
GERMANY AND ITS BASIC LAW (Donald Kommers & Paul Kirchhoff eds., 1993);
Consent and Constitutional Change, in HUMAN RIGHTS AND CONSTITUTIONAL
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The question of Who has authority to declare
unconstitutional either an amendment or part of the original text
raises exquisite practical difficulties. Even the notion itself is
difficult for many learned people to grasp.48 To people who
believe that “the constitution” includes only the text itself, the
idea of an unconstitutional part of the Constitution is a
contradiction in terms. But, if an analyst takes into account that
even the bare constitutional text rests on certain political
theories and that interpreters soon read that document as
encrusted with earlier assumptions, interpretations, and
practices—that is, a nation has a constitutional order, not merely
a constitutional text—then the possibility makes good sense.
Here, Lincoln’s invocation of the Declaration of Independence
would take on added meaning, a meaning he apparently did not
fully explore.
This scenario underlines constitutional interpretation’s being
an art, one whose results will be contestable and, in fact,
frequently contested. Besides the anxieties about an uncertain
future that this enterprise should exacerbate, interpretive
authority should engender deep humility. For diligence and
deliberation, even when combined with great intelligence and
learning, do not guarantee a correct result. Here, it may well
LAW (James O'Reilly ed., 1992); Merlin’s Memory: The Past and Future
Imperfect of the Once and Future Polity, in RESPONDING TO IMPERFECTION: THE
THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 163 (Sanford V.
Levinson ed., 1995); The Right to Privacy and Legitimate Constitutional
Change, in THE CONSTITUTIONAL BASES OF POLITICAL AND SOCIAL CHANGE IN THE
UNITED STATES 213 (Shlomo Slonim ed., 1990); An Ordering of Constitutional
Values, 53 S. CAL. L. REV. 703 (1980); Slaughter-House, Civil Rights, and Limits
on Constitutional Change, 32 AM. J. JURIS. 1 (1986); Staggering Toward the New
Jerusalem of Constitutional Theory: A Response to Ralph F. Gaebler, 37 AM. J.
JURIS. 337 (1992).
48. For the writings of a thoughtful scholar, see JOHN VILE, CONTEMPORARY
QUESTIONS CONCERNING THE CONSTITUTIONAL AMENDING PROCESS (1993); John
Vile, Limitations on the Constitutional Amending Process, 2 CONST. COMMENT.
373 (1985). Lief H. Carter termed my arguments for the possibility of an
unconstitutional constitutional amendment as “poetic,” while earlier, Professor
Henry P. Monaghan had called the argument “astonishing.” CONTEMPORARY
CONSTITUTIONAL LAWMAKING 127 (1985); Our Perfect Constitution, 56 N.Y.U. L.
REV. 353, 369 (1981). In fairness, I add that in 1992, at a conference in Oslo,
Norway, Professor Monaghan graciously told me he no longer disagreed with
my thesis.
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have been that any interpretation Lincoln made or any
justification he offered regarding the Corwin Amendment would
have led to national disaster.
In a more subtle way, questions of Why and When to
interpret rise again. As do cautious judges, Lincoln might well
have decided to rely on Chase’s reasoning and interpret no more
than was absolutely necessary to settle the immediate dispute,
leaving the basic issue of the constitutionality of slavery for
another day.
On the other hand, such a temporizing
interpretation may have been too clever by half. Just as we
might conclude that the South’s actual decision to secede was
irrational, so the North might have acted somewhat, if less,
irrationally and considered a narrow, legalistic, justification for
repudiating the Corwin Amendment an inadequate reason to
rejoin a Union including slave-states.
Lincoln might also have wondered whether this dispute
would have been bedeviling the nation had the men of 1787 not
evaded the moral issue of slavery, even at the cost of two
American nations. Those who believed that slavery would die of
its own accord did not know that, even sooner, Eli Whitney would
invent the cotton gin, and that this technological advance would
make slavery essential to the South’s economy. Would future
technology mean that a decision to avoid the basic issue, even if
immediately effective in restoring the Union, would cause the
tightly connected problems of secession and slavery to continue to
fester? Or would some future invention mean that thousands of
workers would no longer be needed to plant and pick cotton? Or
would railroads, turnpikes, canals, and the telegraph so connect
the scattered parts of the country as to create much more of a
unified national culture and interdependent national economy to
make the idea of disunion anathema? Changes in technology can
have massive political consequences. When was the next such
change coming and what would its effects be? Lincoln had no
way of knowing; and it is unlikely that he would have gained
much insight from President George W. Bush’s assertion that the
future lies ahead.
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ADMINISTRATIVE PREEMPTION IN AREAS OF
TRADITIONAL STATE AUTHORITY
Lisa Kinney Helvin*
I. INTRODUCTION.....................................................................618
II. THE AGENCY PREEMPTION DEBATE: JUDICIAL
DEFERENCE OR A “CLEAR STATEMENT”
APPROACH?.......................................................................626
A. Historic Deference to Administrative Preemption
Determinations and the Court’s Long-Standing
Presumption Against Preemption ...............................626
B. The Normative Debate: Whether Courts Should
Defer to Agencies on Preemption Questions...............630
1. Argument in Favor of Deference to Agency
Determinations .......................................................631
2. Argument Against Deference to Agency
Determinations .......................................................632
C. Clear Statement Rules: The Most Effective Means
of Preserving Political Accountability for
Preemption Decisions...................................................635
III. ADMINISTRATIVE PREEMPTION IN AREAS OF
TRADITIONAL STATE AUTHORITY ..............................638
A. The Continued Relevance of “Traditional State
Functions”.....................................................................640
B. Conventional Clear Statement Rules: Necessary
but Not Sufficient to Protect State Interests ..............644
C. Justifying a More Comprehensive Inquiry When
* Law clerk to the Honorable Diana Gribbon Motz, United States Court
of Appeals for the Fourth Circuit; J.D. 2007, University of Virginia School of
Law. I owe a tremendous amount of gratitude to Professor Anthony J. Bellia,
Jr. for his inspirational teaching and guidance on this Article. I owe many
thanks, as well, to Angela Harris and Miranda Turner for their encouragement
and insightful comments on early drafts. I am grateful, also, to the editors of
the Charleston Law Review for their helpful suggestions. Finally, a special
thank you to my husband, Steve, for his enduring patience and support.
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Traditional State Functions Are Implicated...............648
IV. AN “ENHANCED” CLEAR STATEMENT RULE TO
SAFEGUARD STATE INTERESTS IN
ADMINISTRATIVE PREEMPTION
DETERMINATIONS ..........................................................650
A. Doctrinal Framework....................................................650
B. A New Test for Administrative Preemption ................652
C. Assessment of the Proposed Rule.................................659
D. Implications for the Administrative State...................663
V. CONCLUSION........................................................................666
I. INTRODUCTION
The proliferation of administrative agencies in the latter half
of the twentieth century marked what has been termed a
“‘peaceful revolution’ in government,” and today this expansive
“fourth branch” of government carries primary responsibility for
executing a substantial number of federal statutes.1
The
enormous transfer in legislative power from elected legislators to
rule-making bureaucrats has been driven largely by the need to
accommodate the increasing complexity of modern regulatory
programs. However, federal lawmakers lack the technical and
scientific expertise to effectively administer the modern
regulatory state.
The Supreme Court has also played a
significant role in facilitating this shift in power by lowering the
standard of judicial review for agency actions2 and taking a
deferential approach to administrative interpretations of
1. Frona M. Powell, The Supreme Court Rejects the New Nondelegation
Doctrine: Implications for the Administrative State, 71 MISS. L.J. 729, 729
(2002) (internal quotations omitted); see also Harold J. Krent, Delegation and
its Discontents, 94 COLUM. L. REV. 710, 710 (1994) (reviewing DAVID
SCHOENBROD, POWER WITHOUT RESPONSIBILITY (1993)).
2. See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc.,
435 U.S. 519, 548 (1978) (holding a reviewing court cannot impose procedural
duties other than those mandated by Administrative Procedure Act upon an
agency); NLRB v. Bell Aerospace Co., 416 U.S. 267, 291-92 (1974) (deferring to
agency expertise in choosing which procedure to use when announcing new
legal standards).
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Administrative Preemption
ambiguous statutory language.3
This deferential judicial standard of review raises unique
concerns when agencies assert the power to preempt state law.
Over the last few decades, regulated entities have lodged an
increasing number of lawsuits challenging such assertions.
These cases raise critical questions about agency expertise and
accountability to make such determinations, and they also
generate more fundamental questions about whether the federal
or state governments are better positioned to respond to the
needs of regulated parties and consumers. The George W. Bush
administration, in particular, has been attacked for seeking “to
expand the doctrine of federal preemption to nullify state
products liability and consumer protection laws,”4 and for using
administrative agencies as the “new weapons . . . to chip away
state law protections for injury victims and consumers.”5
The Supreme Court’s April 2007 ruling on federal banking
regulations in Watters v. Wachovia presents a powerful example
of how agency discretion to preempt state law can result in the
erosion of state consumer protection laws.6 While a federal
agency, the Office of the Comptroller General of the Currency
3. E.g., Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837 (1984).
4. Richard Frankel, Undue Deference, TRIAL, Nov. 2006, at 30, 30.
5. Id. Professor Frankel describes several recent attempts by agencies to
preempt state laws in areas historically left to the states. In 2004, the Office of
the Comptroller General of the Currency (OCC) promulgated the regulations
that were recently at issue in Watters v. Wachovia, 127 S. Ct. 1559 (2007).
There, the agency asserted that state law does not apply to national banks
where such law would “obstruct, impair, or condition a national bank’s exercise
of its lending, deposit-taking, or other powers granted to it under federal law.”
Frankel, supra note 4; see also Final Rule, Bank Activities and Operations Real
Estate Lending and Appraisals, 69 Fed. Reg. 1904 (Jan. 13, 2004) (codified at 12
C.F.R. § 7.4008). The National Highway Traffic Safety Administration, the
Food and Drug Administration, and the Consumer Product Safety Commission
expressed similar preemptive objectives, though unlike the OCC, they did so in
regulatory preambles and not in the text of rules that were codified into law.
6. Watters, 127 S. Ct. at 1580. Michigan officials challenged the validity of
a regulation promulgated by the OCC which asserted that the National Bank
Act and the regulations promulgated in pursuance thereof preempted the states
from regulating national banks. The state officials claimed that a subsidiary of
a national bank with a state rather than a national charter did not fall under
the statutory definition of a “national bank,” and, accordingly, the OCC lacked
the authority to preempt state laws governing such entities.
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(OCC), and industry groups argued that federal regulations
should displace state banking laws in order to ensure uniform
nationwide regulation of lenders, consumer groups and the
attorneys general of all fifty states contended that local
regulation could more effectively protect consumers from
predatory lending practices.7 Those in favor of preemption
prevailed when the Court held that the originating statute itself
displaced state law.8 In a ringing dissent, Justice Stevens
warned that the holding allowed companies to circumvent
carefully designed state-based consumer protection schemes and
threatened to “hamstring States’ ability to regulate the affairs of
state corporations.”9 He also accused the majority of improperly
sidestepping the administrative preemption question and
implicitly “endors[ing] administrative action whose sole purpose
was to preempt state law rather than to implement a statutory
command.”10
Other federal agencies are currently facing similar questions
about the scope of their power to preempt state consumer
protection laws. A split continues to emerge among federal and
state courts regarding whether the Food and Drug
Administration (FDA) has the authority to preempt certain state
law tort claims for federally approved drugs.11 In the preamble
7. See Brief of the States of Iowa, et al. as Amici Curiae in Support of the
Petitioner, Watters, 127 S. Ct. 1559 (2007) (No. 05-1342).
8. Watters, 127 S. Ct. at 1572-73.
9. Id. at 1585 (Stevens, J., dissenting, joined by Roberts, C.J., and Scalia,
J.).
10. Id. at 1586 (Stevens, J., dissenting).
11. Catherine M. Sharkey, Preemption by Preamble: Federal Agencies and
the Federalization of Tort Law, 56 DEPAUL L. REV. 227, 245-47 (2007) (noting
the split in authority regarding “whether the Food Drug and Cosmetic Act
(FDCA) preempts state common-law claims for design defect and failure to
warn against pharmaceutical manufacturers”); Teresa Curtin & Ellen Relkin,
Preamble Preemption and the Challenged Role of Failure to Warn and Defective
Design Pharmaceutical Cases in Revealing Scientific Fraud, Marketing
Mischief, and Conflicts of Interest, 35 HOFSTRA L. REV. 1773 (2007) (same);
Tresa Baldas, FDA Drug Rule Splits the Courts, NAT’L L.J., April 30, 2007, at 1.
The Supreme Court has recently taken up two important cases regarding the
FDA’s ability to preempt state law claims, signaling the importance of this
issue. In February 2008, the Court held that the express preemption provision
in the Medical Device Amendments of 1976, 21 U.S.C. § 360k(a)—which
prohibits the imposition of “requirements” that are either different from or in
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to a 2006 final rule on the content and format of prescription
drug package inserts, the FDA asserted that plaintiffs were
prohibited from filing failure-to-warn claims if the drug at issue
carries FDA approval.12 Plaintiffs’ attorneys have attacked the
agency ruling as “camouflaged tort reform,” but the defense bar
contends that a “qualified arm of the federal government should
call the shots on drug safety—not judges and juries.”13 Like the
federal banking regulation at issue in Watters, the FDA’s position
raises critical questions about whether, and to what extent,
courts should take into account administrators’ views on the
preemption of state consumer protection laws.
In recent years, several scholars have explored the issue of
agency preemption, focusing in particular on whether deferential
review is warranted when administrators assert that ambiguous
statutory language or congressional silence affords the agency
broad preemptive discretion.14 A number of commentators have
argued strenuously against judicial deference to agency
addition to those established by the federal government—bars state commonlaw claims challenging the safety or efficacy of a medical device marketed in a
form that has received pre-market approval from the FDA. See Riegel v.
Medtronic, 128 S. Ct. 999, 1011 (2008). The Court also granted certiorari to
decide whether federal law preempts a state product liability statute, where
that statute creates a general “safe harbor” from liability for FDA approved
drugs but carves out an exception for cases in which the approval was obtained
by fraud. Desiano v. Warner-Lambert & Co., 467 F.3d 85 (2005), cert. granted
sub nom, Warner-Lambert Co. v. Kent, 128 S. Ct. 31 (2007). The Court
affirmed by an equally divided Court the judgment of the Second Circuit, which
had held that federal law preempted only those claims based solely on fraud but
did not preempt statutory claims, such as the claim at issue, in which the allged
fraud on the FDA was not itself an element of the claim. Warner-Lambert Co.
v. Kent, 128 S. Ct. 1168 (2008). For a more detailed look at FDA preemption,
generally, see Catherine M. Sharkey, Products Liability Preemption: An
Institutional Approach, 76 GEO. WASH. L. REV. (forthcoming 2008), available at
http://ssrn.com/abstract=1084919.
12. See Requirements on Content and Format of Labeling for Human
Prescription Drug and Biological Products, 71 Fed. Reg. 3922 (Jan. 24, 2006).
13. Baldas, supra note 11.
14. See, e.g., Nicholas Bagley, Note, The Unwarranted Regulatory
Preemption of Predatory Lending Laws, 79 N.Y.U. L. REV. 2274, 2288 (2004);
Jack W. Campbell IV, Regulatory Preemption in the Garcia/Chevron Era, 59 U.
PITT. L. REV. 805 (1998); Nina A. Mendelson, Chevron and Preemption, 102
MICH. L. REV. 737 (2004); Damien J. Marshall, Note, The Application of
Chevron Deference in Regulatory Preemption Cases, 87 GEO. L.J. 263 (1998).
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determinations on preemption issues, contending that agencies
lack the necessary competence and political accountability to
make such decisions.15 These scholars typically favor judicial
presumptions against preemption or requirements that Congress
clearly and expressly delegate to the agency the authority to
preempt state law. On the other side of the debate are scholars
that hold that any congressional delegations to agencies should
be presumed to include the power to preempt state regulations,
on the theory that as long as an agency is exercising properly
delegated authority, Congress would have intended the agency’s
decision on the preemption question to be controlling.16
This debate about the proper scope of agencies’ preemptive
capabilities has permeated the Supreme Court as well. Cases
from the 1990s to the present reveal significant differences in
opinion among the Justices about the proper amount of deference
that agencies should receive when they purport to displace state
law. Although resolution of this question may be difficult due to
the strong feelings on either side of the debate, it is critically
important because of the role agencies play in the modern
regulatory state. Moreover, because the political processes today
remain the primary mechanisms for protecting state interests
against excess federal encroachment,17 it is important to
15. See, e.g., Mendelson, supra note 14; Marshall, supra note 14.
16. See Benjamin Heineman, Jr. & Carter G. Phillips, Federal Preemption:
A Comment on Regulatory Preemption After Hillsborough County, 18 URB. LAW.
589, 592 (1986); Paul E. McGreal, Some Rice with Your Chevron?: Presumption
and Deference in Regulatory Preemption, 45 CASE W. RES. L. REV. 823, 866
(1995).
17. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550-52
(1985) (adopting the view articulated by scholars Herbert Wechler and Jesse
Choper that the political processes, standing alone, would adequately protect
federalism interests); id. (noting that “the composition of the Federal
Government was designed in large part to protect the States from overreaching
by Congress,” citing the facts that “[t]he Framers . . . gave the States a role in
the selection of both the Executive and the Legislative Branches of the Federal
Government,” as “[t]he States were vested with indirect influence over the
House of Representatives and the Presidency by their control of electoral
qualifications and their role in Presidential elections,” and that in the Senate,
States have an even greater and more direct influence, because “each State
received equal representation and each Senator was to be selected by the
legislature of his State”); id. at 552-53 (discussing the “effectiveness of the
federal political process in preserving the States’ interests,” pointing in
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understand whether administrators’ decisions to displace state
law are properly constrained by those processes.
After reviewing the arguments for and against judicial
deference to administrative agencies, this article first sides with
those academics who believe that preemption decisions
fundamentally affecting the balance of federal and state power
must be made by individuals who answer directly to voters.
Thus, courts should not defer to agency administrators regarding
whether, and to what extent, federal statutes authorize agencies
to preempt state law. Instead, courts should require express
congressional delegation of that authority in order to ensure that
preemption decisions are backed by proper congressional
deliberation.
Next, this article considers the issue of administrative
preemption in light of the Supreme Court’s jurisprudence
particular to the facts that “the States have exercised their influence to obtain
federal support” in the form of financial funding and “they have been able to
exempt themselves from a wide variety of obligations imposed by Congress
under the Commerce Clause”); id. at 556 (“The political process ensures that
laws that unduly burden the States will not be promulgated.”); JESSE H.
CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 175-84 (1980)
(explaining that questions concerning the division of power between the federal
and state governments should be left to the political branches rather than the
judiciary); Herbert Wechsler, The Political Safeguards of Federalism: The Role
of the States in the Composition and Selection of the National Government, 54
COLUM. L. REV. 543, 558 (1954) (arguing that the structure of the American
political system itself operates to safeguard States’ interests; pointing in
particular to the continued existence of the States, themselves, and “the role of
the states in the composition and selection of the of the central government”—
i.e., state control over election to Congress, state participation in the Electoral
College, and the composition of the Senate, which affords equal representation
to all of the States); id. at 559 (“[T]he Court is on weakest ground when it
opposes its interpretation of the Constitution to that of Congress in the interest
of the states, whose representatives control the legislative process and, by
hypothesis, have broadly acquiesced in sanctioning the challenged Act of
Congress.”); see also Larry D. Kramer, Putting the Politics Back into the
Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 278 (2000) (noting
flaws in Wechler’s argument, but defending Wechsler’s central thesis that
judicial intervention is unnecessary to protect state interests on the ground that
the modern party system “protect[s] the states by making national officials
politically dependent upon state and local party organizations,” as these
political institutions “link[] the fortunes of officer holders at different levels”
and “foster[] a mutual dependency that induce[s] federal lawmakers to defer to
the desires of state officials and state parties”); infra note 106.
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affording areas of “traditional state authority” special
consideration in preemption determinations.18 Given the Court’s
apparent view that these areas retain privileged status in the
constitutional scheme, this article concludes that when federal
administrators seek to preempt state law in areas traditionally
regulated by the states, conventional clear statement rules may
be insufficient to protect state interests and preserve federalism
values.19 Congress may clearly assert its power to preempt state
law in a given regulatory field—and it may expressly delegate
that power to an administrative agency—and yet that assertion
alone should not serve as the final authority on Congress’s power
to displace state law. Or, as one academic put it, “the law of
preemption is not only about interpreting what Congress has
done, but also includes threshold conceptual and constitutional
issues about what it has the power to do.”20 Thus, to account for
Congress’s tendency to expand its power vis-à-vis the states, and
to adequately acknowledge the Court’s view that certain state
18. Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (“As long as it is acting
within the powers granted it under the Constitution, Congress may impose its
will on the States. Congress may legislate in areas traditionally regulated by
the States. This is an extraordinary power in a federalist system. It is a power
that we must assume Congress does not exercise lightly.”); id. at 461 (observing
that the “plain statement rule” adopted by the Court “is nothing more than an
acknowledgment that the States retain substantial sovereign powers under our
constitutional scheme, powers with which Congress does not readily interfere.”);
id. at 464 (“[I]nasmuch as this Court in Garcia has left primarily to the political
process the protection of the States against intrusive exercises of Congress’
Commerce Clause powers, we must be absolutely certain that Congress
intended such an exercise. ‘[T]o give the state-displacing weight of federal law
to mere congressional ambiguity would evade the very procedure for lawmaking
on which Garcia relied to protect states’ interests.’” (quoting LAWRENCE TRIBE,
AMERICAN CONSTITUTIONAL LAW 480 (2d ed. 1988)).
19. Those values include preservation of decentralized state governments
“that will be more sensitive to the diverse needs of a heterogenous society,”
increased “opportunity for citizen involvement in democratic processes,” more
adaptive governments acting “in competition for a mobile citizenry,” and, most
importantly, a dual system of sovereignty that provides “a check on abuses of
government power.”
Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).
Decentralized government also carries the promise of greater efficiency, which
is presumed to inhere in allocating power to smaller, more localized
governments, and which may be advanced when the states can act as political
laboratories. See Mendelson, supra note 14, at 756.
20. Stephen Gardbaum, Congress’s Power to Preempt the States, 33 PEPP.
L. REV. 39, 40 (2005).
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functions are deserving of special protection, a more
comprehensive inquiry is necessary. Such an inquiry must
consider the propriety of congressionally exercised power and,
accordingly, the scope of delegated administrative authority. In
other words, if the Court’s jurisprudence in this area is to be
taken seriously, then federal courts must police congressional
aggrandizement relative to the states not only when Congress
legislates in a manner that exceeds its constitutional authority,
but also when Congress appears to delegate that potential to
administrative agencies.21 This article presents a mechanism for
doing so.
Part I provides an overview of the current agency preemption
debate and reviews conventional concerns about institutional
competence and political accountability. This Part argues in
support of the conclusion adopted by a number of scholars that
courts should apply clear statement rules strictly in order to
preserve state regulatory autonomy and ensure proper political
accountability for preemption decisions. Part II explains that
when agencies seek to preempt state law in certain fields—areas
of traditional state regulatory authority—those clear statement
rules may fall short. Accordingly, this Part concludes that a
more comprehensive test for administrative preemption is
needed when federal regulations seek to preempt state law
within the states’ “core” police powers.22 Part III presents a new
test for administrative preemption that would constrain both
administrative and congressional attempts to improperly shift
21. The same case for a higher standard of judicial scrutiny could arguably
be made for any statutory preemption provision, regardless of whether it
purports to delegate preemptive power to agencies. Vague delegations of
preemptive power arguably pose more risk to state sovereignty than selfexecuting preemptive statutory provisions, because lawmakers may have
incentives to “punt” difficult questions to agencies by issuing broad or vague
directives, including those that may exceed the bounds of Congress’s Article I
powers. See Campbell, supra note 14, at 836. Thus, for purposes of this paper,
the proposed clear statement rule would be applicable only to administrative
preemption determinations in areas in which state regulatory authority has
traditionally been regarded as sovereign, not all forms of statutory preemption.
22. While recognizing that defining the precise scope of these powers may
be difficult, this Part observes that a historical standard may be the most
judicially manageable one to apply, judging by the Court’s recent jurisprudence.
Infra Part III.B.
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the federal-state balance of power.
II. THE AGENCY PREEMPTION DEBATE: JUDICIAL
DEFERENCE OR A “CLEAR STATEMENT” APPROACH?
Over the last half-century, Congress has increasingly
afforded broad law-making power to agencies to promulgate rules
and adjudicate disputes that arise in pursuance of federal
regulatory objectives.23 The scope of that administrative power is
properly called into question, however, when an agency
independently determines that an ambiguous origination statute
preempts state law 24 or the agency reads an express preemption
provision to confer more expansive power than originally
contemplated by legislators.25
A. Historic Deference to Administrative Preemption
Determinations and the Court’s Long-Standing Presumption
Against Preemption
In its early administrative preemption cases, the Court
applied an extremely deferential standard of review to agency
determinations that either the agency’s enabling act or the
agency’s regulations themselves preempted state law.26 It might
23. See generally JERRY L. MASHAW, RICHARD A. MERRILL, & PETER M.
SHANE, ADMINISTRATIVE LAW 3-12 (5th ed. 2003).
24. Such a determination presumably rests on the assumption that
Congress intended to delegate to the agency the authority to make this decision.
See Howard P. Walthall, Jr., Comment, Chevron v. Federalism: A Reassessment
of Deference to Administrative Preemption, 28 CUMB. L. REV. 715, 762 (1998).
25. When interpreting the scope of expressly delegated preemptive
authority, the agency may, for example, determine that the statute displaces
conflicting state statutes, but not state tort law. See Mendelson, supra note 14,
at 753.
26. United States v. Shimer, 367 U.S. 374, 387 (1961) (holding that the
presence of detailed and exclusive statutory provisions implicitly authorized the
agency to displace state law where necessary to achieve congressional
objectives); Fid. Fed. Sav. & Loan Ass’n v. Cuesta, 458 U.S. 141, 153-54 (1982)
(holding that so long as “Congress has directed an administrator to exercise his
discretion, his judgments are subject to judicial review only to determine
whether he has exceeded his statutory authority or acted arbitrarily” and that
regulatory preemption therefore does not require “express congressional
authorization to displace state law”); accord City of New York v. FCC, 486 U.S.
57, 63-69 (1988); Hillsborough County, Fla. v. Automated Med. Labs., Inc., 471
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have seemed inevitable that, following its 1984 decision in
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,27
the Court would formalize its deferential standard by explicitly
extending Chevron deference to agency preemption decisions.28
Just four years after Chevron, however, in City of New York v.
FCC, the Court failed to invoke that seemingly applicable
precedent.29 Although it did apply a highly deferential standard
of review to the agency’s interpretation of its preemptive
authority, the Court instead relied on its pre-Chevron precedent
as authority. Since deciding City of New York v. FCC, the Court
has frequently deferred to agency judgments, though it has
consistently refrained from articulating a precise standard for
evaluating administrative determinations on preemption
questions.30
U.S. 707, 714-15, 721 (1985); Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691,
699-700 (1984). The Supreme Court recently reaffirmed the approach it
articulated in Fidelity, explaining that in regulatory preemption cases, the only
question is “whether Congress has given [the agency] the power to act as it
has.” New York v. FERC, 535 U.S. 1, 18 (2002).
27. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984).
28. For an explanation of Chevron deference see Cass R. Sunstein, Beyond
Marbury: The Executive’s Power to Say What the Law Is, 115 YALE L.J. 2580,
2587-98 (2006).
29. City of New York v. FCC, 486 U.S. 57, 66 (1988); see also Bagley, supra
note 12, at 2291 (questioning the Court’s analysis “given Chevron’s centrality in
administrative law and the Court’s evident willingness in the 1980s to defer to
agency preemption decisions”).
30. In a dissenting opinion, Justice O’Connor recently faulted the Court
majority for failing to “admit to deferring” an agency’s interpretation of
statutory language under Chevron. Medtronic v. Lohr, 518 U.S. 470, 512 (1996)
(O’Connor, J., joined by Rehnquist, C.J., and by Scalia, and Thomas JJ.,
concurring in part and dissenting in part). Justice O’Connor also observed that
“[i]t is not certain that an agency regulation determining the pre-emptive effect
of any federal statute is entitled to deference.” Id. The Court’s recent decision
in Watters bears a notable resemblance to both City of New York and Medtronic
in that the Court again declined to address whether and to what extent the
agency’s views on the preemptive effect of statutory language were entitled to
deference. Instead, the majority in Watters simply concluded that because the
statute itself impliedly preempted state law, inquiry into the preemptive
significance of the administrative regulation was unwarranted. Watters v.
Wachovia Bank, N.A., 127 S. Ct. 1559, 1572 n.13 (2007). As the dissent and
commentators noted, however, the majority failed to point to any statutory
language directly revealing this intent. Id. at 1573; Posting of Ann Graham to
Consumer L. & Pol’y Blog, http://pubcit.typepad.com/ clpblog/
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The Court’s silence on the standard of review applicable to
agency preemption decisions is particularly problematic, because
the Court’s historically deferential approach to such decisions lies
in stark tension with its oft-cited “presumption against
preemption.”31 In Rice v. Santa Fe Elevator Corp., the first case
to articulate this presumption, the Court reasoned that “in a field
which the States have traditionally occupied[,] . . . we start with
the assumption that the historic police powers of the States were
not to be superseded by the Federal Act unless that was the clear
and manifest purpose of Congress.”32 The presumption that the
Court will protect state police powers from unwarranted federal
incursions conflicts with the deferential approach afforded to
agencies, according to which an agency may determine that
ambiguous language in its enabling act implicitly grants it the
authority to preempt state law.
While the line of cases
counseling deference to agencies would suggest that the Court
should defer to the agency’s expert understanding of the statute,
the Rice presumption would direct the Court to read the agency’s
enabling act not to preempt state law absent an express
congressional directive to the contrary.
Cases in recent years reveal the difficulty the Court has had
in balancing the Rice presumption against its historically
deferential review of agency preemption determinations. In
Smiley v. Citibank (S.D.), for example, the Court simply assumed
that it could resolve de novo whether the federal statute at issue
preempted state law, but it then deferred to the administrative
agency on the meaning of a single word within the statute,33
despite the fact that the agency’s interpretation of that word
arguably expanded the provision’s preemptive effect.34 In other
cases, the Court has claimed to accord “substantial deference” to
agency interpretations of whether federal statutes preempted
state law, but then has apparently proceeded to assess statutory
2007/04/ann_graham_on_t.html (Apr. 17, 2007 4:45 PM),
31. See, e.g., Medtronic, 518 U.S. at 485; Cipollone v. Liggett Group, Inc.,
505 U.S. 504, 518 (1992); CSX Trans., Inc. v. Easterwood, 507 U.S. 658, 668
(1993); Hillsborough, 471 U.S. at 715.
32. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
33. Smiley v. Citibank, 517 U.S. 735, 743-44 (1996).
34. Id.; see also Mendelson, supra note 14, at 739-40.
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meaning independently.35
A close look at the judicial opinions suggests that the
confusion about the proper standard of review may result from
disagreement among the Justices themselves about the correct
way to approach administrative preemption questions. In Geier
v. American Honda Motor Co., for example, the Court split
narrowly on whether to defer to an agency’s determination that
one of its regulations preempted state tort law.36 By ultimately
deferring to the agency’s decision that the regulation did carry
preemptive effect, the majority reasoned that the agency’s expert
judgment “should make a difference” in the Court’s holding.37
The dissenting Justices argued that the majority’s approach gave
federal agencies far too much freedom to preempt state law,
particularly given their lack of expertise to adequately “represent
Justice Stevens’s recent
the interests of [the] States.”38
dissenting opinion in Watters reveals similar sentiments. Citing
the “well-established presumption against preemption,” he
criticized the majority’s approach, explaining that “[n]o case from
this Court has ever applied such a deferential standard to an
agency decision that could so easily disrupt the federal-state
35. See Lawrence County v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S.
256, 262 (1985); Medtronic, 518 U.S. at 496; Geier v. Am. Honda Motor Co., 529
U.S. 861 (2000).
36. Geier, 529 U.S. 861.
37. Id. at 883 (“We place some weight upon DOT’s . . . conclusion . . . that a
tort suit such as this one would ‘stan[d] as an obstacle to the accomplishment
and execution’ of those objectives.”) (citation omitted).
38. Id. at 908 (Stevens, J., dissenting); see also id. at 912. For additional
evidence that several members of the Court would reject the proposition that
“an agency regulation determining the pre-emptive effect of any federal statute
is entitled to deference,” see Medtronic, 518 U.S. at 512 (O’Connor, J.,
concurring in part and dissenting in part, joined by Rehnquist, C.J., and Scalia
and Thomas, JJ.). Nevertheless, the Medtronic majority opinion reveals that
there are at least five votes to apply some degree of deference to agencies in
regulatory preemption cases. Id. at 496 (Stevens, J.; joined by Souter, Ginsburg,
and Kennedy, JJ, with Breyer, J., concurring) (citing Chevron for the
proposition that “[t]he ambiguity in the statute—and the congressional grant of
authority to the agency on the matter contained within it—provide a ‘sound
basis’ . . . for giving substantial weight to the agency’s view of the statute”); id.
at 506 (Breyer, J., concurring) (discussing the merits of deference in regulatory
preemption cases).
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balance.”39 The majority found this argument to be “beside the
point,” however, given its expansive view of the statute’s
preemptive power.40 Thus, the level of deference owed to agency
preemption determinations remains, in the words of Justice
Ginsburg, “an academic question.”41
B. The Normative Debate: Whether Courts Should Defer to
Agencies on Preemption Questions
The Court’s lack of clear guidance on the proper scope of
administrative preemption has confused lower courts42 and left
room for scholars to debate the question of how much, if any,
judicial deference to agencies is appropriate when preemption
questions arise. Although some commentators seem to accept
that broad statutory delegations necessarily confer upon agencies
the power to preempt state law,43 others contend that courts
should only sanction administrative preemption when Congress
has specifically and expressly conferred such power upon an
agency.44 Despite their disagreement over the correct standard
39. Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559, 1584 (2007) (Stevens,
J., dissenting).
40. Id. at 1563.
41. Id. at 1572.
42. See Teper v. Miller, 82 F.3d 989, 997-98 (11th Cir. 1996); United
Distribution Cos. v. FERC, 88 F.3d 1105, 1165-67 (D.C. Cir. 1996); City of New
York v. FCC, 814 F.2d 720, 726 (D.C. Cir. 1987) (“[W]hether Chevron deference
is required in, or appropriate to, judicial review of an agency’s assertion of
preemption authority is unsettled.”); see also Campbell, supra note 14, at 806
n.4 (collecting cases).
43. See, e.g., McGreal, supra note 16, at 866 (arguing that congressional
delegations to agencies may imply some amount of preemptive intent);
Heineman & Phillips, supra note 16, at 589, 592 (arguing that, as a general
matter, so long as the agency was exercising properly delegated authority,
Congress would have wanted the agency’s decision to be effective and to
control).
44. See, e.g., Campbell, supra note 14 (advocating for clear statement rules
and arguing that deference to agencies on preemption questions should be
confined to narrow field preemption); Marshall, supra note 14 (arguing that
Chevron deference should not apply in regulatory preemption cases because
agencies lack sufficient political accountability and expertise regarding the
proper balance of state and federal power, and that deference could pose nondelegation problems); Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L.
REV. 315, 331-36 (2000) (arguing that the “constitutional commitment to a
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of review, however, academics agree that the Court’s current
approach fails to adequately resolve this important debate.45
1. Argument in Favor of Deference to Agency Determinations
Arguments in favor of judicial deference to agencies on
preemption questions typically rely on the theory that agencies
have the expert knowledge and judgment necessary for such
interpretive decisions, particularly in technical fields in which
Congress would have been likely to delegate decision-making
responsibility.46 Thus, when substantive questions of law arise,
an agency may be “well-suited to assess the effect of nonuniform
state standards upon program goals and the level of compliance
with a program.”47 According to this view, agencies are better
equipped than courts to judge whether state laws will conflict
with congressional purposes.
Moreover, agencies are, technically, politically accountable
through both executive and congressional oversight mechanisms,
and therefore should be presumed to act with state interests in
mind.48 For example, the Executive directly influences agency
policy through budgetary review by the Office of Management
and Budget (OMB), and thus has some ability to monitor
federal structure” limits agencies’ ability to preempt state law).
45. E.g., Bagley, supra note 14, at 2293 (“the [Court’s] obtuse opinions do
not provide a method for resolving or analyzing this tension”); Campbell, supra
note 14, at 807 (“[T]he conflict continues to work mischief.”); Marshall, supra
note 14, Part III; McGreal, supra note 16, at 888 (“[T]he Court has been as
unhelpful as the commentary on the issue [of regulatory preemption].”);
Walthall, supra note 24, at 718 (concluding with “a call for the Court to clarify
its stance in this area”).
46. See Geier v. Am. Honda Motor Corp., 529 U.S. 881, 883 (2000) (“[T]he
subject matter is technical; and the relevant history and background are
complex and extensive. The agency is likely to have a thorough understanding
of its own regulation and its objectives and is ‘uniquely qualified’ to comprehend
the likely impact of state requirements.”); see also McGreal, supra note 16, at
866; Heineman & Phillips, supra note 16, at 589, 592.
47. Mendelson, supra note 14, at 779-80.
48. See id. at 741; see also id. at 769 (asserting that “[t]he President’s
desire for reelection supplies an incentive both for the President and for
administrative agencies reporting to her to respond to public preferences,”
including, presumably, those regarding state autonomy).
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preemption determinations.49 Also, empirical evidence confirms
that the Executive has the political will to require agencies to
take federalism values into account. Presidents have issued
executive orders on the subject since President Clinton was in
office.50 Agencies are also accountable to Congress through the
appropriations funding process and oversight hearing
mechanisms.51 Of course, this theory of post hoc congressional
authority presumes that Congress is meaningfully supervising
agency actions. It also places the burden on Congress to express
its disapproval (either financially or otherwise) when agencies
overstep the bounds of their delegated authority.
If those theories of political accountability are correct, then
they support the claim that courts should defer to agency
interpretations of statutory language that, according to the given
agency, grants it preemptive authority. That is, we must read
congressional ambiguity to contain an implicit expression of
intent to confer such decision-making authority on expert
agencies. Under this theory, when agencies tip the federal-state
balance too far, the public retains the ability to express
disapproval of those actions through the political process.
2. Argument Against Deference to Agency Determinations
One of the primary arguments against deference to
administrators’ determinations that congressional silence or
ambiguity confers preemptive authority is that allowing agencies
to read statutory language in this manner permits them to
engage in aggrandizing behavior relative to the states. That is,
an agency’s pro-preemption position may reflect more of an
attempt to expand the breadth of its own regulatory power than
the product of reasoned statutory analysis.52 Justice Stevens
49. MASHAW ET AL., supra note 23, at 268.
50. See Exec. Order No. 13,132, 64 Fed. Reg. 43255 (Aug. 4, 1999)
(requiring an agency to consult with state and local officials proposing to limit
state policy-making discretion); see also Mendelson, supra note 14, at 773 n.149
(describing President George W. Bush’s “Interagency Working Group on
Federalism”).
51. MASHAW ET AL., supra note 23, at 268-311.
52. See Torrey A. Cope, Note, Judicial Deference to Agency Interpretations
of Jurisdiction After Mead, 78 S. CAL. L. REV. 1327, 1342-61 (2005); Frankel,
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recently accused the OCC of this very behavior, lamenting in
dissent in Watters that the “sole purpose” of the administrator’s
decision “was to preempt state law,” and was not, as it
presumably should have been, “to implement a statutory
command.”53 Empirical data suggests that Justice Stevens’s
concern may be valid, as agencies may regularly “‘give short
shrift to states’ regulatory interests when considering questions
of preemption.”54 If this is true, then deference is dangerous
should it permit agencies to expand their jurisdictional and
preemptive capabilities at the expense of the states. Thus, on
this theory, courts should actively police against self-interested
administrative interpretations of ambiguous preemption
provisions.
Several scholars have also questioned whether agencies have
sufficient expertise and political accountability to justify a
presumption of deference on preemption questions.55 Although
agencies may have expertise in evaluating how their enabling
statutes interact with other federal laws, they arguably lack the
institutional competence to evaluate constitutional federalism
questions. Even when federal preemption of state laws would
clearly be constitutional, agencies arguably lack the competence
to make these critical policy judgments. In particular, they may
be unable to effectively assess the value of allowing states to
supra note 4, at 34. For additional commentary on agencies’ aggrandizing
potential, see Cass R. Sunstein, Law & Administration After Chevron, 90
COLUM. L. REV. 2071, 2099 (1990); Ernest Gellhorn & Paul Verkuil, Controlling
Chevron-Based Delegations, 20 CARDOZO L. REV. 989, 994 (1999); see also
WILLIAM A. NISKANEN, JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT 3642 (1971) (employing an economic theory of budget maximization to explain
aggrandizing behavior).
53. Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559, 1586 (2007) (Stevens,
J., dissenting).
54. Frankel, supra note 4, at 34 (citing Mendelson, supra note 14, at 78384).
55. See Campbell, supra note 14, at 832 (explaining that agencies possess
expertise in determining whether preemption will be useful in accomplishing
regulatory goals, but the legislature is more equipped to assess the federalism
implications of preemption); Patrick M. Garry, Accommodating the
Administrative State: The Interrelationship Between the Chevron and
Nondelegation Doctrines, 38 ARIZ. ST. L.J. 921, 948 (2006); Marshall, supra note
14, at 278; Sunstein, supra note 44, at 331; Cass R. Sunstein & Adrian
Vermeule, Interpretation and Institutions, 101 MICH. L. REV. 885, 930 (2003).
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serve as laboratories of innovation and weigh state interests
against federal regulatory objectives.56 That is, administrators’
narrow and technical focus may not be conducive to considering
the value inherent in preserving state-level policy-making and
balancing that value against the efficiencies of a nationwide
regime.
Moreover, although agencies may contend that reading
statutory language to authorize premeption is necessary for
purposes of expediency, this argument itself reveals that
granting agencies the freedom to assert preemptive authority
risks bypassing the more deliberative form of consideration about
these critical policy questions that occur in the federal
legislature.57 Legislative debate may also be superior to agency
decision-making for political accountability reasons. A number of
scholars have argued strenuously that preemption questions are
best left to Congress, where proper political debate among elected
(and locally accountable) representatives can occur.58 As one
commentator has noted, for example, agency rule-making can
occur even when a legislative majority could not be mustered
behind that same proposal—” even if a majority of the states’
representatives in Congress believe that preemption will unduly
trammel state authority, an agency may nonetheless choose that
approach to regulation.”59 In short, agencies’ relative lack of
democratic accountability is particularly troubling, because the
political process cannot operate to ensure that state interests are
protected.
56. See Frankel, supra note 4, at 42.
57. See Campbell, supra note 14, at 833.
58. See Mendelson, supra note 14, at 769; see also William N. Eskridge, Jr.,
Public Values in Statutory Interpretation, 137 U. PA. L. REV. 1007, 1023-25
(1989); Roderick M. Hills, Jr., Against Preemption: How Federalism Can
Improve the National Legislative Process, 82 N.Y.U. L. REV. 1 (2007). Some
scholars argue, however, that even if agencies were politically accountable, that
would be insufficient to protect state interests because of flaws in the “political
safeguards” model. See, e.g., Lynn A. Baker, Putting the Safeguards Back Into
the Political Safeguards of Federalism, 46 VILL. L. REV. 951, 958-61 (2001);
Lynn A. Baker & Ernest A. Young, Federalism and the Double Standard of
Judicial Review, 51 DUKE L.J. 75, 112-17 (2001); Saikrishna B. Prakash & John
C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 TEX.
L. REV. 1459, 1480-89 (2001).
59. Campbell, supra note 14, at 832-33.
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Finally, one might also defend a non-deferential standard of
review on the theory that agencies’ interpretations of
jurisdictional provisions should “always be decided de novo by the
courts.”60 As Justice Brennan has explained, “agencies can claim
no special expertise in interpreting a statute confining its
jurisdiction,” and therefore Congress cannot be presumed to have
intended the “agency to fill ‘gaps’ in a statute confining the
agency’s jurisdiction.”61 Because statutory interpretations that
extend agency authority into territory previously occupied by the
states are, in a sense, jurisdictional determinations, the same
principles that counsel against deference on jurisdictional
questions also counsel against deference on preemption
questions.62
C. Clear Statement Rules: The Most Effective Means of
Preserving Political Accountability for Preemption Decisions
The historic Rice presumption against preemption—and the
clear statement rules often inferred from that presumption63—
are frequently touted as solutions to concerns that Congress will
employ ambiguous statutory language to aggrandize its power
relative to the states.64 As explained in the preceding section,
analogous concerns that agencies will seek to expand their
regulatory authority relative to the states—as well as fears about
administrative competence and political accountability—counsel
60. Smiley v. Citibank, 517 U.S. 735, 743-44 (1996); see Cass R. Sunstein,
Chevron Step Zero, 92 VA. L. REV. 187, 234-36 (2006) (addressing judicial
deference to agencies on jurisdictional questions).
61. Miss. Power & Light Co. v. Mississippi, 487 U.S. 354, 387 (1988)
(Brennan, J., dissenting).
62. See Sunstein, supra note 55, 234-36.
63. A clear statement rule disfavors a finding of preemption absent a clear
statement from the legislature unequivocally stating an intent to preempt. See
Gregory v. Ashcroft, 501 U.S. 452, 461 (1991).
64. See, e.g., Eskridge, supra note 59, at 1023-25 (arguing that clear
statement rules may be justified in preemption cases in part to protect local
values from “inadvertent federal interference”). The modern Court has also
frequently concluded that overcoming the Rice presumption requires a clear and
manifest statement of congressional intent to preempt a state law. See
Medtronic, Inc. v. Lohr, 518 U.S. 470, 484-85 (1996); Cipollone v. Liggett Group,
Inc., 505 U.S. 504, 518 (1992); CSX Trans., Inc. v. Easterwood, 507 U.S. 658,
664 (1993).
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for extension of clear statement rules to the administrative
context. Such rules would ensure that agencies may exercise
only that preemptive authority that politically accountable
lawmakers have granted them.
Perhaps the primary benefit of a clear statement approach is
that it forces federal lawmakers to remain fully politically
accountable for the decision to preempt state law. A number of
academics have cited this advantage when advocating for the
need to protect state interests within the political system.65
Professor Thomas Merrill, for example, explains that “[r]equiring
Congress plainly to state its intention . . . puts States on notice
that they are targeted for regulation. This allows the States and
their allies to mobilize in opposition to such regulation, perhaps
defeating or modifying the proposal without any need for
recourse to judicial enforcement of prohibitory limits.”66
Professor Stephen Gardbaum has expressed similar sentiments,
explaining that in the preemption context, “a purely implied
exercise of an implied power . . . violates the ‘spirit’ of the
Constitution, of which the guaranteed role of the states is a
central part.”67 He too contends that any preemption must be
tied to an express congressional directive.68
By requiring express evidence of Congress’s intent to
preempt state law, clear statement rules, like the Rice
presumption, reflect “an acknowledgment that the States retain
substantial sovereign powers under our constitutional scheme,
65. Professor Viet Dinh is a notable counter-example. He rejects the
applicability of clear statement rules in the preemption context, arguing that
there is no constitutional grounding for them analogous to the Tenth
Amendment protections that justified the need for clear statement rules in
Gregory. See generally Viet D. Dinh, Reassessing the Law of Preemption, 88
GEO. L.J. 2085 (2000). He argues instead that conventional approaches to
statutory interpretation should govern judicial analysis in preemption cases.
Id.
66. Thomas W. Merrill, Rescuing Federalism After Raich: The Case for
Clear Statement Rules, 9 LEWIS & CLARK L. REV. 823, 833 (2005); see also
Campbell, supra note 14, at 831-32 (“The accountability problem created by a
vague congressional delegation of preemptive power to an administrative
agency is . . . that the delegation incorporates an unresolved, sensitive
federalism decision for which Congress must be held directly accountable.”).
67. Gardbaum, supra note 20, at 53-54 (emphasis added).
68. Id. at 56.
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powers with which Congress does not readily interfere.”69 Yet, by
requiring only an “unmistakably clear” expression of Congress’s
preemptive intent, a clear statement approach stops short of
further prescribing how express statements are to be construed.
Thus, this approach ensures that when Congress does intend to
preempt state law, courts afford that intent due respect. Unlike
judicial presumptions, clear statement rules do not vest the
judiciary with discretion to subject express statements to further
narrowing constructions.70 Clear statements therefore may be
superior to the potentially more far-reaching presumption
against preemption in honoring legislative intent.
Academics have observed that, despite the benefits clear
statement rules present for ensuring both that laws are enforced
as Congress intended and that politically accountable actors
engage in deliberative decision-making regarding preemption
decisions, the Supreme Court often requires something less than
unmistakable clarity when it interprets statutory provisions to
give agencies preemptive authority.71 The Court may indeed
have valid justifications for this approach. It may, for example,
find that such interpretations are consistent with the agency’s
own expert views, and, accordingly, are entitled to deference.72
But requiring less than unmistakable clarity in statutory
language purporting to grant agencies preemptive authority may
subject state interests to the aggrandizing tendencies of both
federal lawmakers and agency administrators.
When the
political process is the primary source of protection of those state
interests, courts should require legislators to act deliberately and
69. Gregory v. Ashcroft, 501 U.S. 452, 461 (1991).
70. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 549 (1992) (Scalia,
J., concurring in part and dissenting in part).
71. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 6-28, 1176
n.21 (3d ed. 2000).
72. See, e.g., Geier v. Am. Honda Co., 529 U.S. 861, 883 (2000) (explaining
that that it was appropriate to “place some weight” on the agency’s
interpretation of the objectives underlying its own regulation, as well as the
extent to which a common-law tort suit would stand as an obstacle to those
regulatory objectives); Medtronic, Inc. v. Lohr, 518 U.S. 470, 496 (1996)
(explaining that a federal agency may be “uniquely qualified to determine
whether a particular form of state law ‘stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress’”
(quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).
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to communicate its preemptive intent clearly and expressly.
III. ADMINISTRATIVE PREEMPTION IN AREAS OF
TRADITIONAL STATE AUTHORITY
Generally, clear statement rules serve as a critical tool to
allow courts to ensure that state interests are given proper
consideration in preemption decisions. However, in certain
regulatory areas—those historically considered within a state’s
core police powers—conventional clear statement rules alone
may be insufficient to adequately protect state interests. When
federal agencies displace state authority to make and enforce
criminal law or to regulate health, safety, and general welfare,73
administrative preemption determinations raise particular
concerns that merit the application of a more rigorous form of
judicial inquiry. In the case of state products liability and
consumer protection laws, for example, preemption may
substantially undermine, if not eliminate entirely, the legal
protections historically held to be within the province of the
states.
Of course, if Congress has explicitly conferred such
preemptive authority upon an administrative agency, then the
decision to displace state-law protections lies with Congress and
presumably rests on appropriate considerations regarding the
need for uniform legal rules, reduced regulatory burdens on
businesses, and a unified national marketplace for consumers.
But when federal agencies alone assert preemptive authority in
these fields, then regardless of congressional intent, victims of
corporate misconduct may be unable to vindicate pre-existing
(and arguably non-displaced) state law rights.74 Thus, even if it
is assumed that Congress generally exercises its traditional
federal powers broadly,75 when it delegates legislative power to
73. See Gonzales v. Raich, 545 U.S. 1, 66 (2005) (Thomas, J., dissenting)
(“Here, Congress has encroached on States’ traditional police powers to define
the criminal law and to protect the health, safety, and welfare of their
citizens.”).
74. See Frankel, supra note 4, at 30.
75. Professor Viet Dinh, for example, has argued that when Congress
legislates in areas of “‘peculiarly federal’ interest . . . it need not—and is not
expected to—tread carefully; rather, it can be assumed to exercise its powers
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agencies in those areas historically governed by state law, courts
reviewing agency interpretations of those delegations should not
presume that Congress has exercised its preemptive powers
equally broadly.76 In other words, when areas of traditional state
authority are at stake, courts should employ a higher standard of
review to ensure that Congress has clearly authorized agencies to
preempt existing state law protections.
Although the Supreme Court in Garcia v. San Antonio
Metropolitan Transit Authority rejected the notion that
“traditional” state functions serve as an independent, judicially
enforceable limit on congressional authority,77 the Court has
since repeatedly affirmed the need for special consideration of
federal legislation when it threatens to displace historically
state-based policy decisions.78 Whether this special consideration
reflects doubt about the soundness of the Garcia logic or simply
an effort to err on the side of preserving aspects of state
sovereignty by carving out the states’ police powers, it
nevertheless suggests judicial skepticism that Congress always
legislates with state interests in mind. If this skepticism is
justified—and a number of scholars have recently argued that it
may be79—then clear statement rules that operate only to
broadly, including the power to preempt state law, thereby fully protecting the
federal interest by occupying the regulatory field.” Dinh, supra note 65, at
2107. Whether clear statement rules are unwarranted where agencies regulate
in areas of traditional federal concern is beyond the scope of this article,
however.
76. See Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).
77. In adopting views espoused years earlier by Professor Wechsler, the
Court in Garcia explained that questions about the proper allocation of powers
between the federal government and the states were to be determined by
Congress, alone, with protection of state autonomy derived exclusively from the
inherent political limitations faced by federal legislators. Garcia v. San Antonio
Metro. Transit Auth., 469 U.S. 528, 552 (1985).
78. See Infra Part II.A.
79. See Baker, supra note 58, at 972 (contending that “[s]ubstantive
judicial review of federalism issues is necessary both to remind Congress of its
own obligation to restrain itself, and to catch any particularly egregious
examples of federal overreaching . . . that slip through the system’s political and
procedural checks” (internal citations omitted); Baker & Young, supra note 58,
at 163 (arguing that “concerns about judicial competence, necessity, and the
normative value of federalism” justify judicial review of limitations on federal
power); see generally Bradford R. Clark, Unitary Judicial Review, 72 GEO.
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restrain administrative discretion with respect to preemption
determinations are insufficient for protecting states from
congressional overreaching into areas of traditional state
regulatory authority.
A. The Continued Relevance of “Traditional State Functions”
Despite judicial pronouncements to the contrary, the notion
that “traditional” state functions warrant special judicial
consideration continues to play a meaningful role in the Court’s
jurisprudence. In 1976, then-Associate Justice Rehnquist wrote
National League of Cities v. Usery,80 which has been called “one
of his more important opinions written as an Associate Justice.”81
He explained that when federal statutes “directly displace the
States’ freedom to structure integral operations in areas of
traditional governmental functions, they are not within the
authority granted Congress.”82 This notion that traditional state
functions operate as an independent check on federal
congressional authority was relatively short-lived, however. Less
than a decade later, in Garcia v. San Antonio Metropolitan
Transit Authority, the Court—over a dissenting opinion by
Justice Rehnquist—overruled Usery and “reject[ed] as unsound
in principle and unworkable in practice, a rule of state immunity
from federal regulation that turns on a judicial appraisal of
whether a particular governmental function is ‘integral’ or
‘traditional.’”83 The Court instead held that questions about the
proper allocation of powers between federal and state
WASH. L. REV. 319 (2003) (defending judicial review of the limits on federal
power based on the text of the Supremacy Clause and the Founders’
understanding of individual rights relative to the federal government); Marci A.
Hamilton, The Elusive Safeguards of Federalism, 574 ANNALS AM. ACAD. POL. &
SOC. SCI. 93 (2001) (disputing the political safeguards theory on empirical
grounds) [hereinafter Hamilton, Safeguards].
80. Nat’l League of Cities v. Usery, 426 U.S. 833 (1976) (overruled by
Garcia, 469 U.S. 528).
81. Merrill, supra note 66, at 824.
82. Usery, 426 U.S. at 852.
83. Garcia, 469 U.S. at 546-47. Justice Rehnquist predicted that Garcia
would one day be overruled and the holding in Usery restored. Id. at 580
(Rehnquist, J., dissenting).
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governments were to be resolved by the political process alone.84
Notwithstanding its repudiation of “traditional” state
functions as a designation placing certain domains of state law
beyond federal reach, the Supreme Court has since repeatedly
affirmed the need for close scrutiny when federal legislation
threatens to displace state law in areas traditionally regulated by
the states. That is, while historically state-based decisions may
not be automatically “immune” from federal preemption,85 these
domains still appear to merit special protection in the Court’s
eyes.86
This special protection is often evident when the Court
applies the Rice presumption against federal preemption of the
“historic police powers of the States.”87 Just months after Garcia
was decided, in Hillsborough County v. Automated Medical
Laboratories, Inc., the Court invoked the Rice presumption and
explained that the same principles that motivated application of
the presumption in statutory contexts “apply where, as here, the
field is said to have been pre-empted by an agency, acting
pursuant to congressional delegation.”88 By declining to hold
that federal regulations preempted local ordinances, the Court
emphasized that the field at issue—”the regulation of health and
safety matters”—”is primarily, and historically, a matter of local
84. See id. at 547-54. The Court did, however, acknowledge that judicial
review would be appropriate for determining whether in fact an enactment was
a proper regulation of “Commerce.” See id. at 550 (“[T]he fact that the States
remain sovereign as to all powers not vested in Congress or denied them by the
Constitution offers no guidance about where the frontier between state and
federal power lies. In short, we have no license to employ freestanding
conceptions of state sovereignty when measuring congressional authority under
the Commerce Clause.”); id. at 556 (explaining that its holding applied only to
congressional enactments within Congress’s commerce power).
85. See, e.g., Gonzales v. Raich, 545 U.S. 1, 41 (2005) (Scalia, J.,
concurring) (rejecting respondents’ claim that because federal regulation treads
on “an area typically left to state regulation,” state sovereignty is violated, as
such a claim is insufficient “to render federal regulation an inappropriate
means” to a legitimate congressional end).
86. See infra Part III.B. for a discussion of how the states’ “traditional”
police powers might be defined.
87. Rice v. Sante Fe Elevator Corp., 331 U.S. 218, 230 (1947).
88. Hillsborough County v. Automated Med. Labs., Inc. 471 U.S. 707, 71516 (1985).
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concern.”89 As the FDA failed to persuade the Court that its
policies had affirmatively “convert[ed]” the regulatory field at
issue “into an area of overriding national concern,” the state
ordinances remained intact and controlling.90 Several years
later, in Cipollone v. Liggett Group, Inc., the Court again
explained that it was obligated to construe statutory provisions
regulating cigarette advertising narrowly “in light of the
presumption against the pre-emption of state police power
regulations.”91 Shortly thereafter, in Medtronic, Inc. v. Lohr, the
Court reiterated that “[i]n all pre-emption cases, and particularly
in those in which Congress has legislated . . . in a field which the
States have traditionally occupied, . . . we start with the
assumption that the historic police power of the States were not
to be superseded by the Federal Act unless that was the clear
and manifest purpose of Congress.”92
Gregory v. Ashcroft may be the post-Garcia case in which the
Court most clearly recognized the continuing importance of
protecting the states’ core police powers from federal
When deciding whether a federal statute
encroachment.93
governed the appointment of state judges, an area historically
under state control, Justice O’Connor, speaking for the Court,
explained that this question could only be answered in the
affirmative when there was a “plain statement” from Congress
requiring the preemptive result.94 Gregory is thus regarded as
having cemented in the Court’s jurisprudence a “clear statement
rule” requiring evidence of explicit congressional intent to
displace historically state-based policy-making functions.95 In his
89. Id. at 719.
90. Id. at 720; see also Brief for the United States as Amicus Curiae,
Hillsborough, 471 U.S. 707 (1985) (No. 83-1925).
91. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 518 (1992).
92. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (citing Rice, 331 U.S.
at 230) (internal citations and quotation marks omitted).
93. Gregory v. Ashcroft, 501 U.S. 452 (1991).
94. Id. at 460-64.
95. See WILLIAM N. ESKRIDGE, JR., & PHILIP P. FRICKEY, CASES AND
MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 698
(2d ed. 1995) (describing Gregory as imposing a “super-strong clear statement
rule” in federalism cases).
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opinion for the Court in BFP v. Resolution Trust Corp.,96 for
example, Justice Scalia relied on Gregory in requiring that
Congress provide an “explicit” statement of its intent to preempt
state law when it enters domains traditionally occupied by the
states and “thereby radically readjusts the balance of state and
national authority.”97
Justice Stevens reached a similar
conclusion in his recent Watters dissent. He explained that
because the field at issue—the regulation of consumer lending
practices—is “quintessentially a ‘field which the States have
traditionally occupied,’” the Court “should therefore have been
all the more reluctant to conclude that the ‘clear and manifest
purpose of Congress’ was to set aside the laws of a sovereign
State.”98
These cases reveal that the motivating theory behind Usery—
that Congress does not lightly invade “integral” or “traditional”
state functions—remains alive in and relevant to the Court’s
modern jurisprudence.99 In fact, Professor Merrill describes the
years since Garcia as a “nineteen-year campaign by the late
Chief Justice and his allies to repudiate the underlying thesis of
Garcia—that the respective spheres of authority between the
federal government and the states should be determined solely
by the political process.”100 Justice O’Connor’s dissenting opinion
in Gonzales v. Raich, in which she was joined by Justice Thomas
and Chief Justice Rehnquist, revealed that this campaign
continued through the end of the late Chief Justice’s tenure,
though not always successfully. Justice O’Connor wrote:
We enforce the “outer limits” of Congress’ Commerce
96. BFP v. Resolution Trust Corp., 511 U.S. 531 (1994).
97. Id. at 544 (citing Felix Frankfurter, Some Reflections on the Reading of
Statutes, 47 COLUM. L. REV. 527, 539-40 (1947), as quoted in Kelly v. Robinson,
479 U.S. 36, 49-50 n.11 (1986)) (“‘[W]hen the Federal Government takes
over . . . local radiations in the vast network of our national economic enterprise
and thereby radically readjusts the balance of state and national authority,
those charged with the duty of legislating [must be] reasonably explicit.’”).
98. Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559, 1581 (2007) (Stevens,
J., dissenting).
99. Ann Althouse, Why Not Heighten the Scrutiny of Congressional Power
When the States Undertake Policy Experiments?, 9 LEWIS & CLARK L. REV. 779,
779, 786-89 (2005).
100. Merrill, supra note 66, at 824-25.
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Clause authority not for their own sake, but to protect historic
spheres of state sovereignty from excessive federal
encroachment and thereby to maintain the distribution of
power fundamental to our federalist system of government.
One of federalism’s chief virtues, of course, is that it promotes
innovation by allowing for the possibility that a single
courageous State may, if its citizens choose, serve as a
laboratory; and try novel social and economic experiments
without risk to the rest of the country.101
Justice O’Connor’s statements suggest that courts should
carefully scrutinize federal statutes that infringe on states’
policy-making authority, particularly those that operate within
the domains historically allocated to the states. Although two of
the three Justices that joined the Raich dissent have left the
bench since the case was decided, their legacy lives on in a line of
cases that provides continued support for the notion that, in
areas of “traditional state concern,” the “states lay claim by right
of history and expertise” to exercise their autonomous policymaking authority free from federal intervention.102
B. Conventional Clear Statement Rules: Necessary but Not
Sufficient to Protect State Interests
As the preceding section explained, when federal lawmakers
or administrators assert preemptive authority in areas that fall
within the states’ core police powers, courts must take special
account of the effect that preemption would have on the balance
of state and national authority.103 Conventional clear statement
rules do not meet this standard, however, because they fail to
account for Congress’s tendency to overstep the bounds of its
enumerated powers.
Conventional clear statement rules ensure congressional
deliberation and accountability for sensitive and constitutionally
101. Gonzales v. Raich, 545 U.S. 1, 42 (2005) (O’Connor, J., dissenting,
joined in part by Rehnquist, C.J., and Thomas, J.) (internal quotation and
citations omitted).
102. See United States v. Lopez, 514 U.S. 549, 583 (1995) (Kennedy, J.,
concurring).
103. See BFP v. Resolution Trust Corp., 511 U.S. 531, 539-40 (1994).
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significant preemption decisions. In addition, they allow courts to
confirm that agencies have stayed within the bounds expressly
delegated by politically accountable lawmakers. Thus, states are
protected from administrative decisions that might otherwise
exceed the scope of delegated authority. Clear statement rules do
not, however, protect the states from congressional attempts to
do the same. Congress might, for example, expressly authorize
an agency to issue regulations banning the possession of firearms
in school zones and preempt state law as necessary to effectuate
that objective.
Such a delegation clearly would surpass
Congress’s Article I powers,104 even if the delegation itself were
clear and express and thus satisfied a conventional clear
statement inquiry. This type of example demonstrates the need
for an interpretive rule that would properly constrain both
administrative tendencies to exercise more power than that
expressly delegated by Congress and congressional tendencies to
overstep the constitutional bounds of federal authority.
At the heart of concerns that Congress may tip the federalstate balance too far in favor of federal power are fears that the
“political safeguards of federalism” theory advanced by
Professors Herbert Wechsler and Larry Kramer105—and adopted
by the Court in Garcia—fails as a practical matter.106 Professor
Lynn Baker argues, for example, that the structural mechanisms
upon which the “political safeguards” theory relies in fact “do
little to protect the interests of state governments as a whole
104. See generally Lopez, 514 U.S. 549.
105. See Kramer, supra note 17; Wechsler, supra note 17.
106. In his seminal 1954 article, Professor Wechsler
argued that
institutional mechanisms are sufficient to protect federalism interests. He
pointed specifically to the existence of the states, the allocation of
representatives in the Senate, state control of voter qualifications and
congressional districting, and the Electoral College. Wechsler, supra note 17, at
543-58. Professor Kramer recently has defended Professor Wechler’s original
thesis, contending that institutional political processes adequately protect state
interests in the federal system. In particular, he holds that the political party
system provides incentives for federal officials to take into account state
interests when legislating. Kramer, supra note 17, at 219, 276-87. Both
Professors Wechsler and Kramer conclude that, given these political and
procedural safeguards, “the federal courts therefore have no meaningful, direct
role to play in demarcating and enforcing the boundary between the powers of
our federal and state governments.” Baker, supra note 58, at 951-52.
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from federal usurpation and encroachment.”107 She explains that
“[t]he only constitutional institution that arguably did promote
the representation of state institutional interests, the selection of
senators by state legislators, is now gone.”108 As evidence of the
inefficacy of the modern system at protecting the states from
congressional aggrandizement, she points to the Gun-Free School
Zones Act struck down in United States v. Lopez.109 Given that
nearly all of the states had already enacted prohibitions on the
possession of firearms in or near schools, and there was no
evidence that those laws had failed to achieve their desired
objectives, the federal legislation merely reflected lawmakers’
desire to receive credit for “solving” the uncontroversial issue,
even if it meant treading on an established domain of state
criminal law-making authority.110 Writing with Professor Ernest
Young, Professor Baker also criticizes Professor Kramer’s theory
that the political party system protects state interests, on the
ground that “unlike the institutional safeguards upon which
Wechsler relies, political parties are not part of the constitutional
structure,” and thus any protection the party system might
provide is “necessarily fluid and contingent.”111
Professor Marci Hamilton presents an additional empirical
critique of the political safeguards theory.112 She cites the
passage of several statutes, including the Religious Land Use
and Institutionalized Persons Act (RLUIPA), as evidence of
Congress’s lack of institutional motivation to consider state
interests.113 As she explains, the National League of Cities, the
107.
108.
109.
110.
Baker, supra note 58, at 958 (internal citations omitted).
Id.
Lopez, 514 U.S. 549.
Baker, supra note 58, at 959; see also Baker & Young, supra note 58, at
114-15.
111. Baker & Young, supra note 58, at 115.
112. Hamilton, Safeguards supra note 79; Marci A. Hamilton, Why
Federalism Must Be Enforced: A Response to Professor Kramer, 46 VILL. L. REV.
1069, 1077 (2001) [hereinafter Hamilton, Why Federalism].
113. RLUIPA represents the enacted portion of the Religious Liberty
Protection Act, which was proposed to replace the Religious Freedom
Restoration Act after its invalidation in the Supreme Court. Codified at 42
U.S.C.A. §§ 2000cc-cc5 (2006). See also City of Boerne v. Flores, 521 U.S. 507
(1997).
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National Conference of State Legislators, and the National
Association of Mayors publicly opposed RLUIPA, or parts of it, as
did entities with strong ties to local government and politicians,
including landmark and historical preservation organizations.114
In short, groups that favored state-based decision-making and
enforcement opposed the bill. Yet, the legislation passed quickly
by unanimous consent in the Senate and by voice vote in the
House.115 That RLUIPA stands today as federal law she holds as
evidence of Congress’s tendency and willingness to usurp state
and local authority in a traditional state-law domain.
Regardless of whether Professors Baker, Young, and
Hamilton are correct in their empirical criticisms of the political
safeguards theory, their points shed significant doubt on
Professor Wechsler’s original thesis.116 Moreover, their research
suggests that when administrative agencies seek to preempt
state laws in areas of traditional state authority, it may be
necessary for courts to evaluate those administrative
114. Hamilton, Safeguards supra note 79, at 100 (citing Editorial, Religion
and Its Landmarks, N.Y. TIMES, July 27, 2000, at A-24; David W. Dunlap, God,
Caesar, and Zoning, N.Y. TIMES, Aug. 27, 2000; Juan Otero, Congress Moves to
Federalize Local Land Use Control, NATION’S CITIES WEEKLY, Aug. 7, 2000); see
generally Marci A. Hamilton, Federalism and the Public Good: The True Story
Behind the Religious Land Use and Institutionalized Persons Act, 78 IND. L.J.
311 (2003) [hereinafter Hamilton, Public Good].
115. Hamilton, Safeguards supra note 79, at 100 (citing Religious Land Use
and Institutionalized Persons Act, 106th Cong., 2d sess., H.R. 4862 (2000));
Hamilton, Why Federalism, supra note 112, at 1082.
116. In addition to this empirical critique of the “political safeguards”
theory, some scholars have advanced textual or structural justifications for
judicial review of the limits of federal power. Professor Clark, for example,
looks to constitutional text and original intent. Clark, supra note 79. He
explains that because the Supremacy Clause permits courts to invalidate state
laws that conflict with federal statutes, “of necessity, judicial review of state law
often entails judicial review of the scope of federal powers.” Id. at 353.
Moreover, he contends that “courts cannot uphold the full range of individual
rights contemplated by the Founders without taking a unitary approach to
judicial review—that is, by enforcing both the Bill of Rights and the limits of
federal power.” Id. Professor Hills has advanced a normative justification for
an “anti-preemption” rule of statutory construction. Hills, supra note 58. He
cites Congress’s tendency to avoid politically sensitive issues as grounds for a
rule that would place on those in favor of national (and not state-based)
regulation the burden of seeking preemption. This approach, he claims, would
“promote a more highly visible, vigorous style of public debate in Congress.” Id.
at 2.
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determinations with an eye towards protecting against
overreaching by both administrative agencies and Congress. To
guard against congressional encroachment on state authority,
and to ensure that states retain autonomous decision-making
power over their “core” functions, a more comprehensive
approach than conventionally applied clear statement rules is
needed, one in which the Court holds federal lawmakers
particularly accountable when they assert preemptive authority
in these fields.
C. Justifying a More Comprehensive Inquiry When Traditional
State Functions Are Implicated
The more stringent form of judicial review described above
can be tethered in both constitutional structure and text. As
Justice O’Connor explained in Gregory v. Ashcroft, such an
approach may be valid as a matter of practical necessity to
protect principles of constitutional design.117 If the “double
security” against governmental tyranny arising from the balance
of federal and state power envisioned by Madison “is to be
effective, there must be a proper balance between the States and
the Federal Government. These twin powers will act as mutual
restraints only if both are credible.”118 According to this view of
the Framers’ intent, therefore, state interests must be protected
in order to ensure that constitutional safeguards of democracy
remain “credible.”
A more rigorous form of judicial review of preemptive
decisions implicating traditional state funcations also derives
direct support from constitutional text.
The Constitution
requires that federal regulation be “necessary and proper for
carrying into Execution” the enumerated powers of the federal
government.119 As Professors Gary Lawson and Patricia Granger
have explained:
117. See Gregory v. Ashcroft, 501 U.S. 452, 459 (1991).
118. Id.
119. U.S. CONST. art. 1, § 8, cl. 18. This paper does not argue that a more
rigorous inquiry into administrative preemption in areas of traditional state
authority is mandated by constitutional text, but merely that it is consistent
with modern readings of the Necessary and Proper Clause.
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[T]he word “proper” serves a critical . . . constitutional
purpose by requiring executory laws to be peculiarly within
Congress’s domain or jurisdiction—that is, by requiring that
such laws do not usurp or expand the constitutional powers of
any federal institutions or infringe on the retained rights of
states or individuals.120
In short, they argue that the Necessary and Proper Clause
“serves as a textual guardianof principles . . . of federalism.”121
Thus, according to this reading of constitutional text, a clear
statement rule that seeks to protect those principles derives
support from the Necessary and Proper Clause.
Professors Lawson and Granger decline to specifically answer
whether federal legislation that “significantly impair[s] the
autonomy of state governments can be ‘improper’ because such
laws contravene constitutionally ‘proper’ principles of
federalism.”122 Yet, the Supreme Court has explicitly recognized
their reading of the Necessary and Proper Clause in a manner
suggesting an affirmative answer to that question. In Printz v.
United States,123 Justice Scalia cited Professors Lawson and
Granger when he explained that:
[w]hen a “La[w] . . . for carrying into Execution” the
Commerce Clause violates the [constitutional] principle of state
120. Gary Lawson & Patricia B. Granger, The “Proper” Scope of Federal
Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J.
267, 271 (1993). The authors cite four sources in support of their “jurisdictional
construction” of the Necessary and Proper Clause: “statements by eighteenthand nineteenth-century legal actors; the language and structure of other
provisions of the Federal Constitution; the language and structure of the powergranting provisions of contemporaneous state constitutions; and inferences from
the Framers’ design of the national government.” Id. at 298.
121. Id. at 271-72. Professor Young makes a similar claim, arguing that
“[d]octrinally, recognition of the existence and capacity of state governments
can and should occur through the ‘necessary and proper’ analysis that considers
when Congress may regulate matter outside the Commerce Clause in order to
further a scheme of commercial regulation.” Ernest A. Young, Just Blowing
Smoke? Politics, Doctrine, and the Federalist Revival After Gonzales v. Raich,
2005 SUP. CT. REV. 1, 35 (2005). He contends, however, that this inquiry is
properly folded into the question whether federal action is a “necessary”
exercise of federal authority. Id. at 35-36.
122. Lawson & Granger, supra note 120, at 332.
123. Printz v. United States, 521 U.S. 898 (1997).
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sovereignty . . . it is not a “La[w] . . . proper for carrying into
Execution the Commerce Clause,” and is thus, in the words of
The Federalist, “merely [an] ac[t] of usurpation” which
“deserve[s] to be treated as such.”124
Eight years later, in a concurring opinion in Raich, Justice
Scalia again suggested that the Necessary and Proper Clause
operates as a textual constraint on the federal government’s
ability to infringe on the states’ sovereign powers. Citing Printz
v. United States and New York v. United States, he explained
that “a law is not proper for carrying into Execution [one of
Congress’s enumerated powers] when it violates a constitutional
principle of state sovereignty.”125 If preservation of the states’
core police powers is considered a “constitutional principle of
state sovereignty,” then a test imposing a higher burden of
judicial scrutiny for preemptive actions in these areas is
consistent with Justice Scalia’s reading of the Necessary and
Proper Clause. For a Court that has given great weight to
textual analysis in recent years, this approach thus offers both a
source of legitimacy and consistency for future analysis of
administrative preemption decisions.
IV. AN “ENHANCED” CLEAR STATEMENT RULE TO
SAFEGUARD STATE INTERESTS IN ADMINISTRATIVE
PREEMPTION DETERMINATIONS
A. Doctrinal Framework
Before describing the precise mechanics of a test that would
protect against both congressional and administrative
encroachment into traditionally state-based spheres of authority,
it is necessary to establish the doctrinal underpinnings of that
test. First, Congress should only preempt state law in pursuance
124. Id. at 923-24 (citing THE FEDERALIST No. 33, at 204 (Alexander
Hamilton) (Clinton Rossiter ed. 1961)).
125. Gonzales v. Raich, 545 U.S. 1, 39 (2005) (Scalia, J., concurring) (citing
Printz v. United States, 521 U.S. 898, and New York v. United States, 505 U.S.
144 (1992)) (internal quotation marks and alterations omitted) (emphasis
added).
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of its enumerated powers. Second, Congress should delegate the
power to preempt state law to administrative agencies only when
Congress would have been permitted to execute that power
directly.
It is well established that Congress’s powers are “few and
defined” and that Congress may only legislate in pursuance of
one of those powers.126 And, as Professor Young has explained,
the scope of Congress’s enumerated powers necessarily limits its
ability to preempt state law: “Congress cannot preempt state law,
after all, unless it has the authority to act in the first place.”127
Moreover, according to Professor Viet Dinh, “[r]ecognizing the
limits of Congress’s power . . . and the attendant authority to
preempt state law properly recognizes the competency,
legitimacy, and authority of states to regulate matters within
their legislative jurisdiction.”128 Congress may only preempt
state regulatory authority, therefore, when that preemption is
either directly in furtherance of one of its enumerated powers, or
necessary and proper to the execution of one of those powers.
When neither of those conditions are met, preemption is not
permissible, as it would risk treading on decision-making
authority reserved to the states under the Tenth Amendment.129
Like the principle that Congress’s legislative powers are
126. THE FEDERALIST No. 45, at 258 (James Madison) (E.H. Scott ed., 1898);
see also U.S. CONST. amend. X (“The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.”); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 435
(1793) (“Each State in the Union is sovereign as to all the powers reserved. It
must necessarily be so, because the United States have no claim to any
authority but such as the States have surrendered to them.”) (emphasis
omitted).
127. Young, supra note 121, at 37. While the source of the preemptive power
may be open for debate, it is beyond the scope of the present inquiry. For
arguments that Congress’s power to preempt state law is derived from the
Necessary and Proper Clause see Dinh, supra note 65; Gardbaum, supra note
20, at 781; Campbell, supra note 14, at 813-14. But see Caleb Nelson,
Preemption, 86 VA. L. REV. 225 (2000) (concluding that the power to preempt is
“derivative” of the Supremacy Clause).
128. Dinh, supra note 65, at 2117-18.
129. U.S. CONST. amend. X (“The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.”).
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expressly limited by Article I,130 it is also well established that
Congress may only delegate that power which it is
constitutionally authorized to exercise itself.131
Limits on
Congress’s power to preempt necessarily follow delegated power
to administrative agencies. It follows, then, that Congress may
only delegate preemptive authority to administrative agencies
when the exercise of that authority is within Congress’s
enumerated powers.
B. A New Test for Administrative Preemption
Thus far, this article has established that: (1) Congress may
only preempt state law when directly in pursuance of, or
necessary and proper to, the execution of one of its enumerated
powers; (2) Congress may only delegate such power to an
administrative agency when one of those conditions is met; (3)
administrative agencies should only be permitted to preempt
state law when clearly and expressly delegated that power by
Congress; and (4) when Congress delegates and agencies seek to
exercise preemptive power in areas traditionally regulated by the
states, courts should apply a more stringent inquiry than that
prescribed by conventional clear statement rules. As noted in the
previous section, the first two conclusions are uncontroversial.
As Part I explained, the third conclusion has not been adopted by
the Court, despite being endorsed by academics who have argued
against deference to administrative judgments on preemption
questions.
The fourth conclusion represents a departure from the
standard argument for federalism-based clear statement rules.
While novel, this proposed inquiry is the logical extension of
cases discussed in Part II, such as Cipollone and Gregory, in
which the Court recognized the need to protect state-level
policymaking authority within certain domains. To give practical
130. See, e.g., United States v. Morrison, 529 U.S. 598 (2000) (holding that
the statute at issue exceeded congressional power under the Commerce Clause);
United States v. Lopez, 514 U.S. 549 (1995) (rejecting the government’s
argument that federal regulation of firearms in school zones was justified under
the Commerce Clause).
131. See, e.g., Bowsher v. Synar, 478 U.S. 714 (1986).
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effect to the fourth conclusion, this section proposes that when
litigants challenge an agency’s effort to preempt a state’s historic
“police powers to define the criminal law and to protect the
health, safety, and welfare of their citizens,”132 courts should
employ an “enhanced” clear statement rule when reviewing the
relevant statutory language.
Under the proposed rule, when federal lawmakers seek to
regulate areas traditionally allocated to the states, Congress
must first, identify the source of its power to legislate in that
field, and second, clearly state its intent to delegate preemptive
authority to the agency. The first step ensures that Congress is
held accountable for staying within the bounds of its own
constitutionally delegated powers, while the second ensures that
preemption decisions are made only by politically accountable
lawmakers. This test fills a critical gap in the Court’s current
jurisprudence—one created by the Court’s lack of a coherent and
uniform approach to judicial review of agency preemption and its
failure to explicitly recognize the continued significance of state
police powers since Garcia. The test is still consistent with
Garcia’s central holding, however, because “traditional state
functions” do not operate as an independent justification for
judicial invalidation of congressional authority. Rather, when
those functions are implicated, the test simply mandates a higher
level of judicial scrutiny of agency preemptive determinations.
Of course, application of this test rests on the judiciary’s
ability to define the precise bounds of the states’ historic powers.
That task is, admittedly, a difficult one. The Court in Garcia
found all of the likely candidate criteria so indeterminate that it
entirely rejected any form of judicial review of the proper federalstate balance of power.133 Justice Blackmun, writing for the
majority, explained that a purely historical approach would
“prevent[]a court from accommodating changes in the historical
functions of States, changes that have resulted in a number of
once-private functions like education being assumed by the
132. See Gonzales v. Raich, 545 U.S. 1, 66 (2000) (Thomas, J., dissenting).
This step establishes a triggering mechanism for the enhanced level of judicial
review, similar to those that operate in Equal Protection or First Amendment
contexts.
133. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 543 (1985).
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States and their subdivisions.”134
He also rejected as
unmanageable a “non-historical test” premised on identifying
“‘uniquely’ governmental functions” or “‘necessary’ governmental
services.”135
The fact that the Court has since repeatedly affirmed that
state police powers merit special protection136 belies Justice
Blackmun’s conclusion that any “judicial appraisal of whether a
particular governmental function is ‘integral’ or ‘traditional’” is
both unsound and impractical.137 Indeed, the Court’s continued
employment of doctrine according special consideration to
congressional enactments treading on historical state domains
suggests that, in fact, it has not found such a doctrine to be so
unsound and impractical as to reject it altogether. Moreover, in
several cases since Garcia, the Court has employed a historical
standard for determining what constitutes a “traditional”
governmental function, suggesting that it has not found this
standard quite as problematic as Justice Blackmun envisioned it
might be. Although these cases have arisen in non-federalism
contexts, the pattern suggests that the Justices may have
sanctioned the historical test that Justice Blackmun rejected,
and, furthermore, that such a test may be the most effective
method of inquiry.138 Thus, even though it is beyond the scope of
this article to definitively state whether a purely historical
134.
135.
136.
137.
138.
Id. at 543-44.
Id. at 545.
See supra Part II.A.
Garcia, 469 U.S. at 546-47.
See Kellen McClendon, Do Hospitals in Pennsylvania Relieve the
Government of Some of Its Burden?, 67 TEMP. L. REV. 517, 530-35 (1994); see
also Georgia v. McCollum, 505 U.S. 42, 51 (1992) (inquiring in part “whether
the actor is performing a traditional governmental function”); Edmonson v.
Leesville Concrete Co., 500 U.S. 614, 624 (1991) (reflecting consideration by
both the majority and the dissent of “whether the action in question involves
the performance of a traditional function of the government”); Nat’l Collegiate
Athletic Ass’n v. Tarkanian, 488 U.S. 179, 198 n.18 (1988) (relying on S.F. Arts
& Athletics in stating that “by no means” is the fostering of amateur athletics “a
traditional, let alone an exclusive, state function”); West v. Atkins, 487 U.S. 42,
47 (1988) (recognizing that the provision of medical services in the prison
context was “the exclusive prerogative of the State”); S.F. Arts & Athletics Inc.
v. U.S. Olympic Comm., 483 U.S. 522, 545 (1987) (reasoning that the activity in
question, the coordination of amateur sports, was not “a traditional
governmental function”).
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inquiry is the proper means for determining what constitutes a
“traditional” state function, such an approach—if the Court’s own
jurisprudence is any indication—appears to be the most feasible
one.
As explained above, courts would employ the proposed rule
when reviewing Congress’s delegations to administrative
agencies of authority to preempt a traditional state police power.
A reviewing court would first look to the legislation itself to
determine whether Congress had properly grounded its asserted
authority in one of its enumerated powers.139 If the congressional
theory presupposed certain necessary facts, such as that a
particular regulation would have a substantial effect on
interstate commerce, then the court would hold Congress
accountable for setting forth those findings necessary to support
its exercise of power. This process would ensure that federal
legislation would not “be sustained on the basis of ex-post
arguments by government lawyers about what power Congress
might have been exercising, or what facts Congress might have
imagined to exist in support of such an exercise of power.”140
Moreover, such analysis would ensure “that Congress is held
accountable for squaring its assertions of power with the powers
conferred upon it by the text of the Constitution.”141
The notion that the rule would apply only when traditional
state functions are at stake is novel and requires additional
justification.
The Court has previously stated that the
constitutionality of a congressional act “does not depend on
recitals of the power which [Congress] undertakes to exercise.”142
139. This suggestion in inspired in part by and derives support from
Professor Merrill’s argument regarding the superiority of clear statement rules
over the “prohibitory approach” employed by the Court in cases such as Lopez
and Morrison. See Merrill, supra note 66, at 846. Professor Merrill compares
the two approaches and explains that “the [prohibitory] principles the Court
established in Lopez have been largely eviscerated by Gonzales v. Raich.” Id. at
823. Thus, he advocates that the Court should use this “opportunity” to return
“to a strategy of clear statement rules” to resolve questions regarding the scope
of the Commerce Clause. Id.
140. Id. at 847.
141. Id.
142. EEOC v. Wyoming, 460 U.S. 226, 243-44 n.18 (1983) (quoting Woods v.
Cloyd W. Miller Co., 333 U.S. 138, 144 (1948)).
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That sweeping claim is somewhat misleading, however, as the
Court has also signaled that Congress may in fact have an
obligation to ground its authority in constitutional sources when
it displaces state law.143 In United States v. Lopez, the Court
outlined its history of preemption cases which used the rational
basis test.144 The Court stated that the test was whether “a
rational basis existed for concluding that a regulated activity
sufficiently affected interstate commerce,” and then encouraged
lawmakers to justify their actions via legislative findings when
no substantial effect on commerce “was visible to the naked
eye.”145 As Justice Souter recognized in his dissent in that case,
the level of scrutiny far exceeded the conventional rational-basis
standard.
He wondered whether the approach portended
“[f]urther glosses on rationality review” when congressional
enactments “deal with subjects of traditional state regulation.”146
Several years later, in United States v. Morrison, the Court again
revealed a somewhat conflicted approach to requiring findings to
justify federal incursions into state-regulated areas.147 The Court
stated that “the existence of congressional findings is not
sufficient, by itself, to sustain the constitutionality of Commerce
Clause legislation,”148 but it then confirmed that the lack of such
findings was central to the outcome in Lopez.149
The language in these cases is significant because, in both,
“the Court pointedly admonished Congress to identify and
document the underlying sources of its claimed constitutional
authority to act.”150 Some scholars have even cited those
decisions in support of the conclusion that Congress should not
be permitted to legislate “at the margins of” one of its
143. Dan T. Coenen, A Constitution of Collaboration: Protecting
Fundamental Values with Second-Look Rules of Interbranch Dialogue, 42 WM.
& MARY L. REV. 1575, 1656 (2001).
144. United States v. Lopez, 514 U.S. 549, 557 (1995).
145. Id. at 563.
146. Id. at 608-09 (Souter, J., dissenting); see also Philip P. Frickey, The
Fool on the Hill: Congressional Findings, Constitutional Adjudication, and
United States v. Lopez, 46 CASE W. RES. L. REV. 695, 725-26 (1996).
147. United States v. Morrison, 529 U.S. 598 (2000).
148. Id. at 614.
149. Id. at 610, 614.
150. Coenen, supra note 143, at 1665.
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enumerated powers without documenting its source of legislative
authority, because those “[f]indings, like clear statement rules,
help ensure that congressional action impinging on federalism
concerns are a product of reflection and deliberation.”151
Recently, in Raich, the Court seemed to acknowledge a role
for mandating that Congress document its constitutional
authority, stating that it has “never required Congress to make
particularized findings in order to legislate . . . absent a special
concern.” 152 If the preemption of state police powers constitutes
that sort of “special concern”—which this article argues it does—
then when preemption of those powers is at issue, Congress
should be required to identify the constitutional authority for its
legislation. Preserving state policy-making authority is too
important a component of our constitutional system to affect
without obtaining such assurance.153 Some academics have
claimed that detailed legislative findings should also be
required,154 though this article does not go so far as to make that
same assertion. That said, more detailed findings, such as a
statement explaining the precise nature of a regulation’s effect on
interstate commerce, would certainly be, in the words of Justices
Stevens, “helpful in reviewing the substance of a congressional
statutory scheme, particularly when the connection to [an
enumerated power] is not self-evident.”155
Once the constitutionality of Congress’s preemptive action is
established, the proposed rule would require that the reviewing
court find that Congress has clearly stated its intent to delegate
preemptive authority to an administrative agency. This step
functions as the same type of clear statement rule as that
enforced in Gregory. It ensures that any decisions to alter the
federal-state balance of power are made exclusively by politically
accountable actors. Moreover, to the extent that state and local
governments retain some influence over federal lawmakers,156
151. Harold J. Krent, Turning Congress Into an Agency: The Propriety of
Requiring Legislative Findings, 46 CASE W. RES. L. REV. 731, 745-46 (1996).
152. Gonzales v. Raich, 545 U.S. 1, 21 (2005) (emphasis added).
153. Krent, supra note 151, at 745.
154. See id.
155. Raich, 545 U.S. at 21.
156. But see Hamilton, Safeguards supra note 79; Hamilton, Why
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this step ensures that the political safeguards of federalism cited
by Professors Wechsler and Kramer can be employed to promote
communication between federal and state governments.157 That
is, states and regulated parties can mobilize ex ante to oppose
any preemptive legislation without the need to resort to the
judiciary for an ex post determination of whether the agency
exceeded the bounds of its authority.158
Under the proposed rule, a legal challenge to an agency’s
preemption decision would proceed in two parts. First, the
regulated party might assert that by preempting otherwise
applicable state law, the agency exceeded the bounds of its
statutory authority—that is, that the agency’s action was
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.”159 The agency’s action would be upheld so
long as its determination was consistent with an express
congressional statement authorizing the preemptive action.
Second, the litigant may challenge the enabling statute itself,
arguing that the legislation exceeded the bounds of Congress’s
enumerated powers. To return to the example provided in Part
II.B., legislation authorizing an agency to ban the possession of
firearms near schools and to preempt otherwise applicable state
laws would be struck down under the second step of the analysis.
It is important to note that under the proposed rule, the
courts would not be obligated to engage in sua sponte review of
the constitutionality of the legislative enactment. But if litigants
were to raise this issue, the proposed rule assists the court in two
important ways.
First, when Congress has laid out the
constitutional basis for the enactment, that articulation of
federal authority eases the court’s interpretative task of
determining the intended scope of the legislation (and
corresponding delegation to the agency). Second, the express
statement also facilitates the court’s assessment of whether the
asserted authority was in fact within one of Congress’s
enumerated powers. The reviewing court would then invalidate
Federalism supra note 112, at 1082.
157. See Merrill, supra note 66, at 833-34.
158. See id. at 833.
159. 5 U.S.C. § 706(2)(A) (2000); see also Mendelson, supra note 14, at 791
n.227.
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legislative enactments only when Congress has failed to explain
which of its enumerated powers it has exercised or when it has
improperly exceeded the bounds of those powers.
C. Assessment of the Proposed Rule
The first, and perhaps most frequent, criticism of clear
statement rules is that they allow courts to exceed the proper
bounds of judicial discretion when interpreting statutory
language. As this argument goes, courts should not be permitted
to specifically prescribe how Congress is to legislate—or to hold
legislation to judicially-imposed standards well after Congress
has acted. Moreover, such rules may allow judges to avoid
making difficult constitutional decisions and instead engage in
unwarranted statutory interpretation. One might argue that
this is precisely what occurred in Gregory—the Court narrowly
interpreted the Age Discrimination in Employment Act to
exclude state judges and declined to answer the more difficult
constitutional question of whether Congress could in fact
override a state constitutional provision mandating the
retirement age for those state judges.160 In short, by allowing the
judiciary to engage in this type of statutory interpretation, clear
statement rules arguably violate principles of judicial restraint
and undermine values of “predictability and coherence in
interpretation.”161
The proposed rule, by contrast, could actually limit judicial
discretion when courts are called upon to construe statutes that
implicate federalism principles. Application of the rule would
ensure that only fully accountable political decision-makers give
content to federal law; judges would lack the freedom to infer
preemptive intent into ambiguous statutory language. Moreover,
because the proposed rule would require Congress to clearly
specify the source of its legislative power, it would allow courts to
assess the challenged legislation on its own terms and thus avoid
unbounded inquiries into congressional intent. In the case of
Commerce Clause legislation, for example, courts would simply
160. Gregory v. Ashcroft, 501 U.S. 452 (1991).
161. ESKRIDGE, ET AL., supra note 95, at 700.
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ask whether the enacting Congress could have rationally believed
the legislation was “an appropriate exercise of the power to
regulate interstate and foreign commerce.”162 The required
congressional statement tying the legislation to Congress’s
Article I authority would answer that question. Thus, courts
could avoid arbitrary line-drawing exercises and could more
comfortably defer to congressional judgment on the knowledge
that the legislature had adequately grounded its exercise of
legislative power in the Constitution.
A second critique of clear statement rules is that they offer
an illusory sense of judicial deference to political judgment,
particularly when courts employ those rules to read narrowing
constructions into federal legislation. Such decisions may be
viewed as counter-majoritarian and contrary to duly enacted
political judgments.163 The proposed rule would not present
these concerns. As explained above, when Congress is on notice
that the Court will employ a clear statement rule, the application
of that rule may actually enhance political decision-making by
increasing political discourse about the legislation’s preemptive
effect.164 Also, because the proposed rule adopts only a clear
statement approach, and it does not incorporate a presumption
against preemption, courts would be obligated to take the
congressional statement at face value and not subject it to
further narrowing construction.165 Decisions by congressional
majorities to displace state law would be respected so long as
they are expressly articulated.
Third, in the case of clear statement rules that protect
federalism values, such rules draw the normative critique that
courts should not be independently promoting these values, but
should instead “defer more to the political process . . . to protect
162. Merrill, supra note 66, at 847.
163. ESKRIDGE, ET AL., supra note 95, at 700.
See also Michael P. Lee,
Comment, How Clear is “Clear”? A Lenient Interpretation of the Gregory v.
Ashcroft Clear Statement Rule, 65 U. CHI. L. REV. 255, 256 (1998).
164. Admittedly, only future political decision-making will actually be
enhanced. That Congress should not be expected to have been on notice prior to
the implementation of this rule would serve as a powerful justification for its
application to the law-making process on a prospective basis only.
165. See supra notes 67-68 and accompanying text.
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the states”taking into account congressional structures designed
to protect federalism interests.166 In other words, courts should
heed more carefully the Court’s conclusion in Garcia that
independent judicial policing of state interests is “unsound in
This critique is inapplicable to the proposed
principle.”167
approach, however. Rather than disregarding the logic in
Garcia, the rule described here seeks to protect the logic of that
case by holding politically accountable actors—and not agency
administrators, or worse, judges—responsible for determining
when a federal regulatory scheme may displace an analogous
state regime.168 Because the holding in Garcia assumes a
political branch that actively considers the interests of the states,
the courts must be able to hold Congress strictly accountable for
legislating its clear and manifest intent. If the political process is
to serve as any “check [on] the exercise of federal power, then the
federal government—including its courts—must adhere closely to
the federal law-making procedures that incorporate those
safeguards.”169 Moreover, even if one believes that courts should
defer more often to the political process to protect state interests,
the argument that the process will actually safeguard state
interests largely loses its force where only weakly accountable
agencies are concerned. Even if federal legislators are given the
benefit of the doubt on preemption decisions, agency
administrators are not as directly accountable to people of the
States. Thus, judicial deference to administrative judgments
about a statute’s preemptive effects is far more difficult to justify.
Finally, the rule described in this article might be criticized
for employing “traditional state functions” as its triggering
mechanism. Some might contend that this test reflects an
attempt to revitalize the doctrine the Supreme Court explicitly
166. ESKRIDGE, ET AL., supra note 95, at 700.
167. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 554, 561
(1985).
168. Gregory v. Ashcroft, 501 U.S. 452, 464 (1991) (stating that “inasmuch
as [the] Court in Garcia has left primarily to the political process the protection
of the States against intrusive exercises of [congressional authority],” the Court
must always “be absolutely certain that Congress intended such an exercise.”)
169. Bradford R. Clark, Separation of Powers as a Safeguard of Federalism,
79 TEX. L. REV. 1321, 1419 (2001).
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rejected when it overruled Usery.170 This criticism is misplaced,
however, because the proposed test employs the “traditional state
functions” inquiry only as a triggering mechanism, not as an
independent justification for invalidating federal action. Critics
of the proposed approach might nevertheless argue—as Justice
Blackmun did in Garcia—that the “traditional state functions”
standard remains hopelessly indeterminate and gives far too
much discretion to judges.171 As previously noted, however, the
Court has employed a historical test for defining this class of
functions in non-federalism contexts in numerous cases since
Garcia. 172 Even Justice Blackmun, himself, signed on to
numerous decisions either endorsing or failing to reject the
historical test applied by the respective Court majority.173 Thus,
while such a test might be accused of indeterminacy, that
shortcoming has not deterred the Court in cases not controlled
directly by Garcia.174 Furthermore, the use of “traditional state
functions” as a triggering mechanism respects the line of cases
recognizing the special role state governments play in our
constitutional scheme, and it adheres to the logic that the
Necessary and Proper Clause itself limits Congress’s power to
“infringe on the retained rights of the states.”175
170.
171.
172.
173.
Garcia, 469 U.S. at 546-47.
Id.
See supra note 138 and accompanying text.
Georgia v. McCollum, 505 U.S. 42, 51 (1992) (inquiring in part
“’whether the actor is performing a traditional governmental function’” (quoting
Emonson v. Ceesville Concrete Co., 500 U.S. 614, 621-22 (1991))); Nat’l
Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 197-98 n.18 (1988)
(stating, in an opinion joined by Justice Blackmun, that “by no means is [the
fostering of amateur athletics] a traditional, let alone an exclusive, state
function”); West v. Atkins, 487 U.S. 42, 47 (1988) (Blackmun, J.) (recognizing
that the provision of medical services in the prison context was “the exclusive
prerogative of the State” (internal citation omitted)); S.F. Arts & Athletics Inc.
v. U.S. Olympic Comm., 483 U.S. 522, 545 (1987) (reasoning, in an opinion
joined in part by Justice Blackmun, that “[n]either the conduct nor the
coordination of amateur sports has been a traditional governmental function”);
id. at 548 (O’Connor, J., concurring and dissenting in part, joined by Blackmun,
J.) (failing to refute the majority’s conclusions with Garcia).
174. See McClendon, supra note 138, at 535.
175. Lawson & Granger, supra note 120, at 271.
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D. Implications for the Administrative State
Under the proposed test, agencies would be precluded from
unilaterally interpreting ambiguous statutes to grant them the
discretion to preempt state law. And, even when Congress has
clearly delegated preemptive authority to the agency, courts may
nevertheless strike down administrative actions taken pursuant
to that authority when litigants successfully challenge Congress’s
asserted power to displace state law. Thus, judicial application of
this rule could result in fewer cases of administrative
preemption. This outcome, in turn, could result in an increased
number of instances in which both state and federal regulatory
standards govern private actors.
Admittedly, such a regime could create confusion among
regulated parties as to which set of laws controls. However, that
confusion would be short-lived: regulated parties would only need
to look to the statutory language for a clear statement of
preemptive authority. Like the courts, these parties would be on
notice that, as long as the federal regulations did not squarely
conflict with the state rules, and Congress did not clearly express
its intent that ambiguous statutory language should preempt
state regimes, then the federal rules would not be held to
displace analogous state regulations.176 Thus, to the extent that
they were not in direct conflict, both sets of rules would be
applicable. Of course, where the state laws do squarely conflict
with the federal statutory scheme, principles of federal
176. This test is analogous to other decisions in which the Court has
delegated decision-making authority to politically accountable actors, even at
the risk that such delegation might frustrate regulated parties seeking
resolution of the issue from federal courts. In Michigan v. Long, the Court
determined that where it cannot tell with certainty whether a state judgment
rests on state grounds that it has no authority to review or on federal grounds
that are open to review, it may send the case back to the state court (either by
reversing and remanding or by vacating and remanding), thus permitting the
state court to clarify the basis for its earlier decision. 463 U.S. 1032, 1038-42
(1983). In Alexander v. Sandoval, the Court explained that “[l]ike substantive
federal law itself, private rights of action to enforce federal law must be created
by Congress,” and not the courts. 532 U.S. 275, 286 (2001). Like Long and
Sandoval, the proposed rule simply requires that locally accountable actors
articulate legal rules in an unambiguous manner.
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supremacy mandate that the federal scheme will win out.177
Under no circumstances, therefore, would regulated parties be
forced to choose which of two competing sets of regulations to
follow.
One might also argue that a test imposing a higher level of
judicial scrutiny for agency action would undermine the efficacy
of the administrative state. By taking decision-making authority
away from expert administrators, the test could be accused of
reducing agency flexibility and responsiveness.
A judicial
approach precluding agencies from issuing interpretations
broadly preempting state law might also be attacked for
undermining uniformity in areas of national regulatory
importance. Thus, even if regulated parties were clear as to
which set of laws governed, they might still complain about being
subject to “an unduly burdensome and duplicative state
regulation.”178
If one views experimentation and diversity among the states
as a virtue, however, then lack of uniformity should not be seen
as inherently problematic.179 In the case of the federal banking
regulations at issue in Watters, for example, some argue that
“[b]y preventing states from crafting their own responses to a
serious and growing problem—one that defies a straightforward
legislative approach—the OCC has virtually ensured that that
vulnerable
borrowers
will
remain
underprotected
by
underinclusive and underenforced federal law.”180 Moreover, to
the extent federal efforts “to curb the predatory lending problem
177. U.S. CONST. art. VI, § 2, cl. 2 (Supremacy Clause).
178. Robert Barnes & Dina ElBoghdady, High Court Sides with Banks on
Mortgage Rules, WASH. POST PAGE (Apr. 18, 2007), available at
http://www.washingtonpost.com/wpdyn/content/article/2007/04/17/AR2007041700611.html (last visited Feb. 17,
2008) (quotingWatters v. Wachovia Bank, N.A., 127 S. Ct. 1559, 1567 (2007)).
179. See Gonzales v. Raich, 545 U.S. 1, 42 (2005) (O’Connor, J., dissenting)
(“One of federalism’s chief virtues . . . is that it promotes innovation by allowing
for the possibility that ‘a single courageous State may, if its citizens choose,
serve as a laboratory; and try novel social and economic experiments without
risk to the rest of the country.’”) (quoting New State Ice Co. v. Liebmann, 285
U.S. 262, 311 (1932) (Brandeis, J., dissenting)).
180. Bagley, supra note 14, at 2275.
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have thus far been unsuccessful,”181 the Supreme Court’s decision
to uphold federal preemption of applicable state banking laws
may actually retard the nationwide effort to combat mortgage
lending abuses.
The proposed test would still permit expert administrators to
determine when federal regulatory schemes are best served by a
singular approach nationwide. It would simply limit
administrators’ discretion to cases in which a properly authorized
Congress had expressly delegated preemptive power. The notion
that agencies would be precluded from exercising power that they
have not been expressly delegated would, admittedly, chart a
new path for a Supreme Court that has thus far remained
conflicted over whether, and to what extent, administrative
preemption determinations warrant judicial deference.182 But
the idea that agencies are limited in the scope of their authority
by Congress’s Article I powers represents a well-established
principle of administrative law, even if it has not been
incorporated into judicial clear statement rules to date. Any
agency regulations promulgated pursuant to a delegation
exceeding Congress’s Article I powers are already subject to
invalidation in a challenge to Congress’s Commerce Clause
Thus, the second prong of the test merely
authority.183
anticipates those challenges and seeks to head them off by
constraining congressional delegations ex ante, rather than ex
post when the enabling statutes are challenged.
Finally, to the extent the proposed test incorporates special
judicial consideration of state police powers into its statutory
analysis, it does represent a novel and, perhaps, more restrictive
approach to judicial review of agency action. Concerns with this
approach would be far more justified, however, if the test allowed
courts to invalidate agency action solely on the ground that the
181. See Julia Patterson Forrester, Still Mortgaging the American Dream:
Predatory Lending, Preemption, and Federally Supported Lenders, 74 U. CIN. L.
REV. 1303, 1310 (2006).
182. Supra Part I.B.
183. Consider the example of legislation authorizing an agency to issue
regulations banning the possession of firearms in school zones described supra,
in Parts II.B. and III.B. Litigants would clearly succeed in a constitutional
challenge to such legislation.
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action impinged on a state’s core police powers. As previously
explained, however, the proposed “traditional state functions”
inquiry would not provide courts with independent authority to
invalidate administrative (or congressional) action. Instead it
would operate only as a triggering mechanism for a higher
standard of judicial review. Of course, reasonable minds may
differ on whether even this higher standard of review is
appropriate. Whether one finds this imposition on the scope of
agencies’ preemptive authority fatal, or merely a necessary
consequence of an approach affording greater solicitude of states’
interests, is almost certain to rest on individual views about the
virtues of the federalist system and the extent to which “historic
spheres of state sovereignty” merit continued protection. 184
V. CONCLUSION
The growth of the administrative state generates important
questions about the scope of authority conferred upon this
powerful “fourth branch of government.”185 As agencies have
increasingly sought to exercise preemptive authority, scholars
have questioned the source and legitimacy of that authority with
much greater frequency and urgency.186 To the extent those
agency actions threaten pre-existing “state law protections for
injury victims and consumers,”187 it is critical that the Supreme
Court resolve the question of whether deferential review is
warranted when administrators assert that ambiguous statutory
language or congressional silence affords an agency broad
preemptive discretion.188 The Court’s failure to do so has
184. Raich, 545 U.S. at 42 (O’Connor, J., dissenting).
185. See, e.g., Process Gas Consumers Group v. Consumers Energy Council,
463 U.S. 1216, 1219 (1983) (White, J., dissenting) (arguing that invalidating the
legislative veto “merely guarantees that the independent agencies, once created,
for all practical purposes are a fourth branch of the government not subject to
the direct control of either Congress or the executive branch”); President’s
Comm. on Admin. Mgmt., Report of the President’s Committee on
Administrative Management (1937) (attacking independent agencies as a
“headless fourth branch of government”).
186. See supra notes 5-14 and accompanying text.
187. Frankel, supra note 4, at 30.
188. The Court may soon have an opportunity to do just that. In January
2008, the Court granted certiorari in Wyeth v. Levine, No. 06-1249, 128 S.Ct.
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generated significant discussion within the academic community
and, more importantly for affected parties, it has caused
confusion among the lower courts. This debate may only
intensify in the coming years as the federal government
increasingly turns to cooperative federalism mechanisms to
regulate areas of shared national and local concern.189
This article contends that limitations on administrators’
preemptive authority cannot be derived from interpretive canons
that counsel deference to agencies based on theories of expertise
and institutional competence.190 Such canons are justified in
cases such as Chevron, itself, when the issue is whether the
agency or the court should hold presumptive authority to
construe ambiguous language regarding a statute’s regulatory
scope. When it comes to questions about preemption, however—
and particularly when those questions arise in areas historically
regulated by state governments—neither agencies nor the courts
can be entrusted with the task of balancing state interests
against federal regulatory and enforcement objectives. Even if
administrators’ views are entitled to some measure of deference
regarding, for example, “whether a particular form of state law
1118 (2008), in which it will decide whether federal law preempts certain state
common law tort claims against drug manufacturers. The Vermont Supreme
Court ruled that the FDA’s regulations provided only a floor on FDA-approved
drug labeling requirements, and thus states were free to impose more
restrictive labeling requirements under their own duty-to-warn laws. Levine v.
Wyeth, --- A.2d ---, 2006 WL 3041078 (Vt. 2006). The court explained that
Congress intended the Food, Drug, and Cosmetics Act (FDCA) “to preempt only
those state laws that would make it impossible for manufacturers to comply
with both federal and state requirements.” Id. at ¶ 32. But it found “[n]othing
in the FDA's new statement” to suggest that it would be impossible for
pharmaceutical companies to comply with both “federal obligations and the
obligations of state common law” to provide adequate warnings.
Id.
Accordingly, the court rejected the federal agency’s claim that the FDCA’s
preemption provision encompassed state common law claims. Id. at ¶¶ 33-34.
189. See Cope, supra note 52, at 1359; Philip J. Weiser, Chevron,
Cooperative Federalism, and Telecommunications Reform, 52 VAND. L. REV. 1, 3
n.6 (1999); see also Mendelson, supra note 14, at 774-75 & n.157. Cooperative
federalism refers to a form of regulation in which federal and state governments
work cooperatively and collectively to address common problems rather than
making and enforcing separate policies.
190. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984).
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‘stands as an obstacle to’” federal objectives,191 agencies still lack
the expertise and the incentives to fully and adequately
accommodate state interests. The judiciary, since Garcia, also
lacks a meaningful legal standard against which to measure
federal action. As the Supreme Court has acknowledged, the
required line-drawing exercise would necessarily “invite[] an
unelected federal judiciary to make decisions about which state
policies it favors and which ones it dislikes.”192 Therefore, given
that the primary check on federal “tyranny and abuse” against
state autonomy remains the federal law-making process,193 that
process must be the exclusive authority on questions of
preemption. In other words, only Congress, speaking clearly and
expressly, should be permitted to displace state regulatory
authority in those spheres historically controlled by the states.
To hold otherwise “would evade the very procedure for
lawmaking on which Garcia relied,” by allowing politically
unaccountable actors to make decisions that would
fundamentally alter the federal-state balance of power.194
The test presented in this paper for analyzing administrative
preemption determinations represents a novel approach to
judicial review of such agency actions. The test adds coherence
and uniformity to an area of law thus far governed only by caseby-case analysis. It also explicitly recognizes a principle that has
remained important to, but below the surface of, the Court’s
jurisprudence since Garcia—the notion that state police powers
merit special protection from federal interference. Although the
Court certainly could reverse course and repudiate that idea, to
date it has not. The proposed test also respects the Court’s
recent jurisprudence limiting Congress’s enumerated powers. By
requiring that Congress expressly articulate the constitutional
191. Medtronic, Inc. v. Lohr, 518 U.S. 470, 496 (1996) (internal quotations
omitted); see also Geier v. Am. Honda Motor Co., 529 U.S. 861, 883 (2000)
(citing Medtronic for the proposition that agencies are “‘uniquely qualified’ to
comprehend the likely impact of state requirements” and affording deference to
the agency’s interpretation of the extent to which state law requirements would
impede the objectives underlying the federal regulatory scheme).
192. Garcia v. San Antonio Metro. Trans. Auth., 469 U.S. 528, 546 (1985).
193. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).
194. Id. at 464 (quoting TRIBE, supra note 71, at 480).
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basis for its delegation of preemptive authority, the test ensures
that Congress may not purport to convey more power to an
agency than it, itself, has been delegated by the Constitution.
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DAMNED YANKEES: RESTRICTIVE
COVENANTS THAT DISCRIMINATE AGAINST
GEOGRAPHIC ORIGIN
Lindsay E. Leonard*
I. INTRODUCTION.....................................................................671
II. COMMON LAW RULE AGAINST RESTRAINTS ON
ALIENATION .....................................................................674
III. RESTRICTIVE COVENANTS AND THE UNITED
STATES CONSTITUTION ................................................677
A. Requirement for State Action.......................................678
1. The Public Function Doctrine.................................679
2. The Entanglement Exception .................................681
B. Equal Protection............................................................685
1. Geographic Origin is Not a Suspect Class .............686
2. Restrictions on Geographic Origin Survive
Rational Basis Analysis ..........................................693
C. The Right to Travel .......................................................697
IV. THE FAIR HOUSING ACT ..................................................698
V. SOCIAL UNDESIRABILITY .................................................700
VI. CONCLUSION ......................................................................701
I. INTRODUCTION
In 1829, Langdon Cheves, a former Speaker of the United
States House of Representatives, established Delta Plantation in
Jasper County upon returning to his native South Carolina.1
* Law clerk to the Honorable David C. Norton, Fordham University
School of Law, J.D., magna cum laude, University of North Carolina at Chapel
Hill, B.A. Many thanks to Professor Charles Sullivan of Seton Hall University
School of Law for his guidance on both this article and my law school career,
Professor Daniel Capra of Fordham University School of Law for his advice,
Judge David Norton, and Professor Abraham Bell of Fordham University. I am
truly grateful to my parents, R. Lindsay and Bonnie Leonard, for their love and
support.
1. Bruce Smith, Plantation Owner Bars All ‘Yankees,’ CHARLESTON
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Under Cheves’s leadership, it became one of the largest rice
plantations in the country.2 Although he was an early supporter
of Southern secession, Cheves died in 1857, several years before
the beginning of the Civil War.3 Delta Plantation remained in
operation until General Sherman and his army burned
everything on the property in January 1865 during his infamous
march through the Carolinas.4 The storied tale of this property,
however, does not end there.
In 1998, a South Carolina businessman named Henry
Ingram, Jr. bought Delta Plantation.5 Committed to restoring
and preserving the Southern heritage of the property,6 Mr.
Ingram subsequently amended the deed and recorded the
restrictive covenants at the Jasper County Courthouse in South
Carolina.7 According to Mr. Ingram, “Delta Plantation will once
again be available to the true Southerners to view, camp, hunt,
fish, use, enjoy and share as true Southerners are taught from
birth.”8
Most notably, the deed states, “[t]he property shall never be
leased, sold, bequeathed, devised or otherwise transferred,
permanently or temporarily, to any person or entity that may be
described as being part of the Yankee race.”9 Mr. Ingram defines
“Yankee race” as “any person or entity born or formed north of
the Mason-Dixon line, or any person or entity who has lived or
been located for a continuous period of one (1) year above said
GAZETTE, Feb. 7, 1998, at P4C.
2. Jim Minter, Editorial, Basic Training in Southern Living, THE ATLANTA
J. & CONST., Feb. 24, 1998, at A17.
3. See Biographical Directory of the United States Congress, Langdon
Cheves (1776-1857), http://bioguide.congress.gov/scripts/
biodisplay.pl?index=C000350 (last visited Mar. 21, 2008); see also G. Randal
Hornaday, The Forgotten Empire: Pre-Civil War Southern Imperialism, 36
CONN. L. REV. 225, 272 (2003).
4. Smith, supra note 1, at A17.
5. Id.
6. Minter, supra note 2, at A17.
7. Smith, supra note 1, at P4C.
8. Henry Ingram, Deed Restrictions on Delta Plantation, in 182 JASPER
COUNTY REGISTER OF DEEDS 235, 237 (filed Feb. 4, 1998) (hereinafter “Deed
Restrictions”).
9. Id. at 235.
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line.”10 The deed expressly provides that none of the provisions
may be construed to permit any racial discrimination against
African-Americans, so long as they are Southern.11 Apparently,
Mr. Ingram did not feel these provisions sufficiently protected
the property and also included a clause that prohibits any person
or entity with the name of Sherman, or any combination of the
letters of the word, from ever owning, leasing, entering, or
walking upon Delta Plantation.12 The deed includes a provision
to avoid any of the prohibitions against ownership.13
An
individual may swear to a Southern oath of loyalty and, as a
result of declaring allegiance, may be permitted to purchase and
use the property.14
In response to the media reaction surrounding the filing of
this deed, Professors Alfred L. Brophy and Shubha Ghosh wrote
an article condemning Mr. Ingram’s restrictive covenants.15
Their article advances three separate arguments against the
legality of the deed.16 They argue first that enforcement of the
deed is likely impermissible under the common law property rule
against restraints on alienation.17 The professors then assert
that the restrictive covenants prohibiting “Yankee” ownership
violate both the Fair Housing Act and the Equal Protection
Clause of the United States Constitution.18
The primary purpose of this article is to examine the legality
of a restrictive covenant prohibiting ownership based on
geographic origin under the Equal Protection Clause of the
Constitution, the constitutional right to travel, and the Fair
10.
11.
12.
13.
14.
Id.
Id. at 236.
Id. at 235-36.
Id. at 236-37.
Id. at 240; see also Patrick J. Rohan, Preparing Community
Associations for the Twenty-First Century: Anticipating the Legal Problems and
Possible Solutions, 73 ST. JOHN’S L. REV. 3, 12 n.33 (1999) (discussing Mr.
Ingram’s covenants).
15. Alfred L. Brophy & Shubha Ghosh, Whistling Dixie: The Invalidity and
Unconstitutionality of Covenants Against Yankees, 10 VILL. ENVTL. L.J. 57
(1999).
16. Id. at 58.
17. Id.
18. Id.
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Housing Act.
The article will first refute the argument
concerning the common law rule against restraints on alienation.
The article will then argue that Delta Plantation’s restrictive
covenants do not run afoul of either the United States
Constitution or the Fair Housing Act. Nevertheless, this article
will argue that these types of restraints on land use are not
socially desirable, because they prevent the development of fully
integrated and diverse communities, and promote stereotypes
and prejudice.
II. COMMON LAW RULE AGAINST RESTRAINTS ON
ALIENATION
Professors Brophy and Ghosh argue that the covenant
restricting the sale of Delta Plantation to anyone born above the
Mason-Dixon line violates the common law rule against
restraints on alienation.19 Generally, the common law prohibits
restraints on alienation,20 but a partial restraint on alienation
may be upheld “when it is reasonably designed to attain or
encourage accepted social or economic ends.”21 Partial restraints
are acceptable only if one can establish “they are ‘reasonable
under the circumstances.’”22 Courts may consider a variety of
factors in determining reasonableness, including whether the
person imposing the restraint has an interest in the land, the
duration of the restraint, the size of the class of persons
prohibited, and the motivation behind the restraint.23
South Carolina property law permits partial restraints on
The South Carolina
alienation for a particular purpose.24
Supreme Court has held, “[c]onditions which prohibit [a
property’s] alienation to particular persons or for a limited period
or its subjection to particular uses, are not subversive of the
estate; they do not destroy or limit its alienable or inheritable
19.
20.
21.
22.
Id.
26A C.J.S. Deeds § 313 (2001).
Id.
Brophy & Ghosh, supra note 15, at 62 (quoting RESTATEMENT
PROPERTY § 406(c) (1944)).
23. Id. at 63 (citing RESTATEMENT OF PROPERTY § 406 cmt. i (1944)).
24. See Lynch v. Lynch, 159 S.E. 26, 30 (S.C. 1931).
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character.”25 In determining whether the restrictions are invalid
because they destroy the inalienability of the property, the intent
of the parties governs.26 Enforceable restrictive covenants must
express the purpose of the parties, cannot be indefinite, and
The “performance or
cannot violate public policy.27
nonperformance [of the covenant] must affect the nature, quality,
value, or mode of enjoyment of [the property].”28
Although it may be reluctant to do so, a court likely would
uphold the restrictive agreement prohibiting the sale of Delta
Plantation to Yankees. Mr. Ingram consulted a lawyer when
drafting this deed, and other experts familiar with South
Carolina state property law have also noted its likely
enforceability.29
Although certainly not dispositive, these
opinions lend some credence to the deed being upheld by a South
Carolina court. Potentially, Mr. Ingram could independently
establish that the restraint was reasonable. He has an interest
in the land, he stated the purpose of the restriction in the deed,
and the restriction does not discriminate against a protected
class of persons. The size of the class of persons prohibited may
weigh against enforceability. He could easily argue, however,
that a significantly larger portion of the population is not
restricted—at a minimum, everyone in the United States who
does not meet the definition of Yankee.
Moreover, Mr. Ingram could argue that the social ends
gained by these restrictions against this class of persons are
necessary to preserve the character of the land. Professors
25. Id.
26. See Forest Land Co. v. Black, 57 S.E.2d 420, 424 (S.C. 1950).
27. Vickery v. Powell, 225 S.E.2d 856, 858 (S.C. 1976); see also Sea Pines
Plantation Co. v. Wells, 363 S.E.2d 891, 894 (S.C. 1987) (holding courts shall
enforce restrictive covenants as voluntary contracts unless too indefinite or
against public policy); Cedar Cove Homeowners Ass’n v. DiPietro, 628 S.E.2d
284, 292 (S.C. Ct. App. 2006) (holding restrictive covenant enforceable).
28. Epting v. Lexington Water Power Co., 181 S.E. 66, 70 (S.C. 1935); see
also Cedar Cove Homeowners Ass’n, 628 S.E.2d at 292.
29. See Bruce Smith, Owner Says No to Yanks in Dixie, CHARLESTON
GAZETTE (Ingram had a lawyer review the language); see also Smith, supra note
1, at 3M (Columbia, S.C. real estate attorney believes it would stand, but notes
he would hate to be the judge; assistant vice president with title insurance
company suggested possible problem with one provision but as to the
geographic prohibition agreed with real estate attorney).
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Brophy and Ghosh concede that “preserv[ing] the historic
character of the plantation” may be a factor that favors
upholding the restraint.30 There is a strong argument that the
Southern character of Delta Plantation, as it has stood since its
rebirth, is worth preserving. The Northeast has seen dramatic
reduction of open space;31 Mr. Ingram could argue that this
urban over-development philosophy should not spread to the
South, which would destroy the public’s ability to use the open
areas of property. Preservation of open spaces is one of the
stated purposes of the deed.32 As one author put it, “[r]ural
places often are romanticized as unspoiled, safe, quiet, and
beautiful.”33 Thus, there is at least some recognition of the
societal and economic value of pastoral lands.
Furthermore, Mr. Ingram could assert that he seeks to
prevent “rural” discrimination; that is, discrimination directed
against people who do not hail from urban centers such as New
York, Boston, or Philadelphia.34 People living in rural areas
“often are stereotyped as uneducated, unsophisticated, backward,
and sometimes mentally deficient and physically dirty.”35
Affording the community the opportunity to make use of the
property for purposes that encourage what some consider a less
popular or less sophisticated lifestyle is not an unreasonable
motive.36 Moreover, the non-performance of this covenant could
30. Brophy & Ghosh, supra note 15, at 68.
31. See Debra Lyn Bassett, The Rural Venue, 57 ALA. L. REV. 941, 946-47
(2006) (“The vast majority of America’s population resides in urban areas. This
clustering of large groups of people into relatively small geographical areas—1.5
million people, for example, crowd into 23.7 square miles known as
Manhattan—provides a striking contrast to the non-urban remainder.”).
32. See Deed Restrictions, supra note 8, at 237 (Delta Plantation available
to “view, camp, hunt, fish, use, enjoy and share”).
33. Bassett, supra note 31, at 947.
34. See id. at 947-48.
35. Id.
36. See, e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,
448-50 (1985) (unreasonable restrictions requiring permit for mentally disabled
group home invalidated when community allowed for many other uses); Moore
v. City of E. Cleveland, 431 U.S. 494, 498-99 (1977) (impermissible restriction
that determined which categories of relatives could live together in city); Hill v.
Cmty. of Damien of Molokai, 911 P.2d 861, 872 (N.M. 1996) (restrictive
covenants could not be used to prevent a group home for persons with AIDS
from residing in community).
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significantly impact the value or mode of enjoyment of the land
as envisioned by the deed, a specific factor considered important
by South Carolina courts. Thus, there is a strong argument that
the South Carolina courts would find that Mr. Ingram’s
restrictive covenant barring the sale of Delta Plantation to
Yankees does not violate the common law prohibition of restraint
on alienation
III. RESTRICTIVE COVENANTS AND THE UNITED STATES
CONSTITUTION
Can restrictive covenants discriminating against a class of
persons based on geographic origin survive constitutional
scrutiny? Professors Brophy and Ghosh conclude that this type
of restrictive covenant “would undoubtedly be struck down” by a
federal or state court because it violates the Fourteenth
Amendment of the United States Constitution,37 which provides
in relevant part:
All persons born or naturalized in the United States and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No state shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.38
Professors Brophy and Ghosh assert that covenants such as
Mr. Ingram’s cannot withstand scrutiny under the Fourteenth
Amendment because such covenants are an “impermissible racial
classification and . . . an impediment to the constitutional right to
travel.”39 These rights will be examined in turn, but only after a
brief consideration of “state action.”
37. Brophy & Ghosh, supra note 15, at 70.
38. U.S. CONST. amend. XIV, § 1.
39. Brophy & Ghosh, supra note 15, at 70-71.
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A. Requirement for State Action
A fundamental principle is that the prohibitions of the
Constitution apply only to state action.40 In an oft-quoted
passage, the Supreme Court explicated that the Fourteenth
Amendment “erects no shield against merely private conduct,
however discriminatory or wrongful.”41 Therefore, as an initial
matter, this type of covenant would clearly be unconstitutional if
enacted by a state legislature or local municipality.42 It would
violate the Article IV Privileges and Immunities Clause that
“serves as a restraint on state efforts to bar out-of-staters from
access to local resources.”43 Because Mr. Ingram’s deed involves
private restrictive covenants only, the threshold question is
whether any action may be fairly attributed to the state. Only
after determining whether state action exists can the
constitutionality of these covenants be assessed.44
The Supreme Court first articulated the state action doctrine
in The Civil Rights Cases in 1883 when it held that Congress did
not have the power under Section Five of the Fourteenth
Amendment to pass laws prohibiting purely private racial
discrimination.45 The Court reaffirmed this doctrine as recently
as the beginning of this decade.46 The essence of the state action
doctrine is that the “Constitution’s protections of individual
liberties and its requirement for equal protection apply only to
the government.”47 State action refers to all levels of government
With very limited exceptions,
and government officials.48
40. Shelley v. Kraemer, 334 U.S. 1, 13 (1947) (citing The Civil Rights
Cases, 109 U.S. 3 (1883)).
41. Id.
42. See KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW
306 (14th ed. 2001) (The Privileges and Immunities Clause of Article IV
protects citizens against discrimination on the basis of state residency).
43. Id.
44. See Shelley, 334 U.S. at 13.
45. The Civil Rights Cases, 109 U.S. 3, 13 (1883) (“the prohibitions of the
amendment are against State laws and acts done under State authority”).
46. See United States v. Morrison, 529 U.S. 598 (2000) (reaffirming state
action doctrine articulated in The Civil Rights Cases).
47. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 469 (2d ed. 2005).
48. See id.
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restrictions on conduct within the United States Constitution do
not expressly apply to private individuals or entities.49
The Supreme Court has developed a number of tests for
determining the point at which arguably private conduct becomes
state action, thus triggering the protections of the Constitution.50
Commentators have articulated these tests in various ways, often
with significant overlap.51 Thus, the state action doctrine is rife
with irregularities and the Supreme Court itself has conceded
that “the ‘cases deciding when private action might be deemed
that of the state have not been a model of consistency.’”52
Whether the Constitution applies to private conduct requires
analysis of two separate classifications for state action—the
“public function” doctrine and the “entanglement exception.”53
1. The Public Function Doctrine
The public function doctrine requires a private entity to
“comply with the Constitution if it is performing a task that has
been traditionally, exclusively done by the government.”54 In
Marsh v. Alabama, the Court held that, regardless of private
ownership, a company town was required to comply with the
The deputy sheriff, paid by the company,
Constitution.55
arrested a Jehovah’s Witness after she had been warned not to
49. See id.; but see, e.g., U.S. CONST. amend. XIII, § 1 (“Neither slavery nor
involuntary servitude . . . shall exist within the United States . . . .”).
50. See Lisa J. Chadderdon, No Political Speech Allowed: Common Interest
Developments, Homeowners Associations, and Restrictions on Free Speech, 21 J.
LAND USE & ENVTL. L. 233, 242 (2006).
51. See id. (arguing the Supreme Court has used four distinct tests to
analyze state action: judicial enforcement, company-town, sufficiently close
nexus, and entwinement); see also CHEMERINSKY, supra note 47, at 472 (There
are only two exceptions to the state action doctrine triggering the Constitution:
public function and entanglement. Many cases involve discussions of both
exceptions.); Katharine Rosenberry, The Application of the Federal and State
Constitutions to Condominiums, Cooperatives and Planned Developments, 19
REAL PROP. PROB. & TR. J. 1, 11 (1984) (concluding that courts have used two
tests for state action: sufficiently close nexus and symbiotic relationship).
52. CHEMERINSKY, supra note 47, at 472 (quoting Edmondson v. Leesville
Concrete Co., 500 U.S. 614, 632 (1991)).
53. Id.
54. Id.
55. Marsh v. Alabama, 326 U.S. 501, 509 (1946).
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distribute religious literature on private property.56 The Court
determined that a state may not permit “a corporation to govern
a community of citizens so as to restrict their fundamental
liberties” and then enforce “such restraint by the application of a
state statute.”57 The town, although owned by a private entity,
functioned in the same manner and provided the same services
as any other town in the country;58 thus, its actions could fairly
be attributed to the state for purposes of federal constitutional
protection.
The Supreme Court again addressed the public function
exception to the state action doctrine in Jackson v. Metropolitan
Edison Co.59 The Court applied a substantively different test
that asked whether “there is a ‘sufficiently close nexus’ between
the challenged conduct of the private company . . . and the
involvement of the state to find that state action is present in the
actions of the private company.”60 The Court concluded that
Pennsylvania was not sufficiently connected with the power
company, whose termination of an individual’s service without
notice was at issue, so as to make the conduct fairly attributable
to the state under the Fourteenth Amendment.61
Restrictive covenants, by contrast, are unlikely to be
characterized as state action under the public function exception.
Delta Plantation has not been turned into the functional
equivalent of a town. It is adjacent to the town of Hardeeville,
South Carolina, a fully functioning municipality governed by the
local authorities.62 Mr. Ingram does not presently provide any
services traditionally provided by a local government. Mr.
Ingram has, however, expressed a desire to develop the land with
homes, a motel, a convenience store, and a restaurant.63 This
56.
57.
58.
59.
60.
Id. at 503.
Id. at 509.
Id. at 507-08.
Jackson v. Metro. Edison Co., 419 U.S. 345 (1974).
Chadderdon, supra note 50, at 255. (citing Jackson v. Metro. Edison
Co., 419 U.S. 345 (1974)).
61. Jackson, 419 U.S. at 358-59.
62. See Jasper County Government, http://www.jaspercountysc.org (last
visited
Mar.
21,
2008);
City
of
Hardeeville,
South
Carolina,
http://www.cityofhardeeville.com (last visited Mar. 21, 2008).
63. See Smith, Owner Says No to Yanks in Dixie, supra note 29, at 3M.
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development could implicate the public function exception to the
state action doctrine. The analysis would depend on whether the
resulting community rose to the level of a company town or
offered services traditionally provided by the government, such
as sanitation departments, public safety entities, and schools to
the inhabitants of Delta Plantation. The development of Delta
Plantation would likely have to be far beyond that currently
contemplated before a theory of state action would trigger the
Fourteenth Amendment prohibition.
2. The Entanglement Exception
By contrast, the more tenable position that the restrictive
covenant implicates state action would be under the
entanglement theory. This doctrine mandates that “private
action must comply with the Constitution if the government has
authorized, encouraged, or facilitated the unconstitutional
conduct.”64 The Supreme Court’s decision in Shelley v. Kraemer65
provides the most relevant articulation of this doctrine.
In Shelley v. Kraemer, the Court consolidated two cases
involving the judicial enforcement of racially restrictive
covenants by state courts; one prohibited ownership and
possession, while the other prohibited only occupancy.66 The
Supreme Court unequivocally held that judicial enforcement of
racially restrictive covenants constituted state action, and as
such is proscribed by the Fourteenth Amendment.67 The Court
acknowledged that the primary intent of the framers “was the
establishment of . . . basic civil and political rights and the
preservation of those rights from discriminatory action on the
part of the States based on considerations of race and color.”68
Nevertheless, the Court determined that “judicial action . . .
64. CHEMERINSKY, supra note 47, at 472.
65. Shelley v. Kraemer, 334 U.S. 1 (1948).
66. Id. at 4-7 (racially restrictive covenant enforced in Missouri prohibited
ownership and occupancy while the covenant enforced in Michigan only
prohibited occupancy).
67. Id. at 22-23.
68. Id. at 23.
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bears the clear and unmistakable imprimatur of the State.”69
But for the intervention of the court, “supported by the full
panoply of state power,” the petitioners could have occupied the
homes free from the racially restrictive covenants.70 With
relative ease, the Court held that “in granting judicial
enforcement of the restrictive agreements in these cases, the
States have denied petitioners the equal protection of the laws
and that, therefore, the action of the state courts cannot stand.”71
Shelley remains good law, but the precedential value of the
decision is uncertain.72 Since the Shelley decision, the Court has
failed to outline the parameters of its holding and has only
seldom applied it as precedent.73 In fact, Justice Scalia, in an
opinion for the Court, chastised Justice Souter’s emphasis on
Shelley, stating that a position that requires any “reliance upon
an extension of that volatile case is obviously in serious
trouble.”74
In contrast to the Court’s rare invocation of the decision,
commentators have frequently and sharply attacked Shelley for
stretching the application of the state action doctrine beyond
reason.75 If any action by a state court, including a dismissal of a
suit, constitutes state action, “then ultimately all private actions
must comply with the Constitution.”76 Accordingly, an individual
could not banish someone from her property for engaging in
offensive political speech or because she disliked the intruder’s
religion.77 A court would have to decide the case under First
69.
70.
71.
72.
Id. at 20.
Id. at 19.
Id. at 20.
See CHEMERINSKY, supra note 47, at 489 (citing Herbert Wechsler,
Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 29 (1959)
(criticizing Shelley)); see also Chadderdon, supra note 50, at 244 (noting that the
holding of Shelley is controversial); ROBERT BORK, THE TEMPTING OF AMERICA
153 (1990) (arguing Shelley is not a proper constitutional decision).
73. See CHEMERINSKY, supra note 47, at 490.
74. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 282 n.14
(1993).
75. See BORK, supra note 72, at 152; CHEMERINSKY, supra note 47, at 490;
Shelley Ross Saxer, Shelley v. Kraemer’s Fiftieth Anniversary: “A Time for
Keeping; a Time for Throwing Away”?, 47 U. KAN. L. REV. 61, 62-63 (1998).
76. CHEMERINSKY, supra note 47, at 490.
77. See BORK, supra note 72, at 152.
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Amendment jurisprudence rather than common law trespass.78
However laudable the result in Shelley may be, it simply cannot
be interpreted to transform all private conduct into state action.
To do so would severely undermine the legitimacy of both the
United States Constitution and the Supreme Court.79 Thus,
expansive application of the state action doctrine as envisioned
by Shelley remains unlikely.
While lower courts have frequently declined to extend Shelley
beyond its facts for purposes of the state action doctrine,80 the
Shelley directive remains equally unclear in the context of
restrictive covenants.
Professors Brophy and Ghosh
unequivocally maintain that “judicial enforcement of a restrictive
covenant constitutes state action,”81 and only marginally attempt
to qualify that statement by conceding that there is “some
confusion [in the] lower courts.”82 Some courts, however, do not
share the Professors’ conviction, and uphold restrictive covenants
that (if there were state action) would infringe other
constitutional rights.83 Therefore, one should proceed cautiously
before concluding that the application of Shelley should extend
beyond the limited context of racially restrictive covenants.
Shelley survives as the only viable approach for finding state
action regarding a private restrictive covenant that discriminates
based on geographic origin. But before determining the likely
78. See id.
79. See id. at 153 (“complete perversion of the Constitution . . . [that]
makes the Supreme Court the supreme legislature”).
80. See Davis v. Prudential Sec., Inc., 59 F.3d 1186, 1191 (11th Cir. 1995)
(“The holding of Shelley . . . has not been extended beyond the context of race
discrimination.”); Parks v. “Mr. Ford”, 556 F.2d 132, 136 n.6a (3d Cir. 1977)
(recognizing that the doctrine of Shelley has been limited to cases involving
racial discrimination); Golden Gateway Ctr. v. Golden Gateway Tenants Ass’n,
29 P.3d 797, 810 (Cal. 2001) (noting that Shelley has been limited to the facts of
the case); Midlake on Big Boulder Lake, Condo. Ass’n v. Cappuccio, 673 A.2d
340, 342 (Pa. Super. Ct. 1996) (trial court’s reliance on Shelley was in error
because the restrictive covenants involved prohibitions on speech and did not
discriminate based on race).
81. Brophy & Ghosh, supra note 15, at 78.
82. Id.
83. See Midlake on Big Boulder Lake, Condo. Ass’n, 673 A.2d at 342
(refusing to find restrictive covenant prohibiting certain types of speech
unconstitutional).
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success of arguing that the enforcement of these covenants
constitutes state action, there remains one final aspect of Shelley
to consider—the political context during which this decision was
rendered.84 The Court decided Shelley in the post-World War II
era, at a time that saw “unprecedented energy against the second
class citizenship accorded to African Americans in many parts of
the nation.”85 The decision came toward the beginning of the
burgeoning Civil Rights Movement,86 and fifteen years before
Martin Luther King, Jr. delivered his famous “I Have a Dream”
speech at the Lincoln Memorial. At the time, the Court had not
decided the landmark case, Brown v. Board of Education,87 and
Congress had not yet passed the Civil Rights Act of 1964.88
Considering the volatile state of race relations, the Court’s farreaching decision becomes much more understandable. It also
helps explain the subsequent limited application of Shelley and
the reluctance of lower courts to extend it beyond racial
discrimination. Given the hesitance of courts to expand Shelley’s
reach, and their willingness to uphold other types of private
restrictive covenants that infringe constitutional rights, state
action would not be found through judicial enforcement of a
restrictive covenant such as that employed by Mr. Ingram. The
current political and social climate does not mandate a ruling
that private discrimination based on geographic origin be
prohibited, as it did in the context of the racially restrictive
covenants outlawed in Shelley.
Furthermore, the Court recently has sought to restrain the
84. See BORK, supra note 72, at 153 (“Shelley was a political decision.”);
Saxer, supra note 75, at 75-82 (discussing the history of racial discrimination
from the enactment of the Thirteenth Amendment until the present time;
including the lack of housing following the conclusion of World War II).
85. Library of Congress, The African Odyssey: The Quest for Full
Citizenship, http://leweb2.loc.gov/ammem/anohtml/exhibit/aointro.html (last
visited Mar. 22, 2008).
86. See Saxer, supra note 75, at 77-78 (discussing racial discrimination and
Civil Rights movement); see also Library of Congress, supra note 85.
87. Brown v. Bd. of Educ., 347 U.S. 483 (1954) (holding racial segregation
unconstitutional).
88. See Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified
at 42 U.S.C.A. §§ 1981-2000(h)-(6) (2000)).
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breadth of some constitutional doctrines.89 A court would likely
not accept an invitation to find state action in this context of
private covenants absent racial discrimination. Because state
action does not exist in the enforcement of Mr. Ingram’s deed,
any argument that these restrictive covenants violate the
Constitution necessarily fails. Assuming, arguendo, Shelley
would apply and state action could be found through judicial
enforcement, restrictive covenants excluding a class of persons
based on geographic origin would, nevertheless, still be
constitutional.
B. Equal Protection
Brown v. Board of Education signals the beginning of the
Supreme Court’s development of the modern day Equal
Protection Doctrine.90 As it stands today, the Equal Protection
Clause of the Fourteenth Amendment unquestionably prohibits
the state from discriminating against protected classes of
persons.91 The critical inquiries for Equal Protection analysis
are, first, to determine the classification of persons and, second,
to evaluate the challenged state action based on the appropriate
level of scrutiny.92 Accordingly, an Equal Protection analysis of
Mr. Ingram’s deed must first ask whether classification by
geographic origin is an impermissible racial classification, or
alternatively, whether Yankees otherwise constitute a protected
class of people. If a court found this classification based on
geographic origin is a suspect class, then a heightened level of
scrutiny would apply. By contrast, if members of this class are
not protected, then rational basis, a much lower level of scrutiny,
will apply. Finally, the Equal Protection analysis asks whether
the government action—judicial enforcement of geographically
89. See United States v. Morrison, 529 U.S. 598, 608 (2000) (reaffirming
that the Commerce Clause power is not without limits); United States v. Lopez,
514 U.S. 549, 567 (1995) (restricting the Commerce Clause power so as to not
convert congressional authority under this enumerated power into a general
police power).
90. See CHEMERINSKY, supra note 47, at 617.
91. See, e.g., Brown, 347 U.S. 483; Grutter v. Bollinger, 539 U.S. 306
(2003).
92. See CHEMERINSKY, supra note 47, at 618.
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discriminatory restrictive covenants—can survive the level of
scrutiny applied.
1. Geographic Origin is Not a Suspect Class
History has shown that the primary purpose of the
Fourteenth Amendment was to eradicate much of the racial
discrimination directed against African-Americans that persisted
after the Southern defeat in the Civil War.93 Regardless of its
original purpose, the protections of the Amendment extend to
more classifications beyond the racial group whose plight was the
primary motivation for its passage.94 Therefore, one must
determine whether classification based on geographic origin can
properly be understood as an impermissible racial classification
or one based on some other protected class and thus trigger strict
scrutiny of the restriction.
Courts apply strict scrutiny to restrictions that either facially
invoke race or that purport to be racially neutral, but are proven
to have a discriminatory intent through a disparate impact on a
particular race.95 Although Mr. Ingram uses the word “race” to
describe Yankees in his deed, this likely does not rise to the level
of a facial race classification. Professors Brophy and Ghosh
concede that Yankee is not a traditional racial classification.96
Distinctions based on geographic origin can, and do, include
people from every race.97 It seems unlikely that the mere
recitation of the word race suffices to subject this to
constitutional scrutiny as a facially discriminatory restriction.98
93. See PAUL BREST ET AL., PROCESSES OF CONSTITUTIONAL DECISIONMAKING
241-55 (4th ed. 2000) (“Although the [Thirteenth] amendment abolished
slavery, the Black Codes, adopted by many Southern states immediately after
the war, threatened to restore freedmen to their antebellum status.”); see also
SULLIVAN & GUNTHER, supra note 42, at 601 (“The strongest consensus about
the meaning of equal protection is drawn from its historical origins: at the very
least it was directed at governmental racial discrimination against blacks.”).
94. See Korematsu v. United States, 323 U.S. 214 (1944) (considering
racial classification of Japanese-Americans).
95. See Milliken v. Bradley, 418 U.S. 717 (1974).
96. See Brophy & Ghosh, supra note 15, at 80.
97. Id.
98. Id. (noting the absurd conclusion that covenants that restrict based on
“left handed race” would be subject to strict scrutiny even though the
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The more difficult question is in defining what constitutes a race,
and thus, whether Yankee can properly be classified as a race.
Professor Neil Gotanda has identified four distinct concepts
of race in the Supreme Court’s equal protection jurisprudence:
status race, formal race, historical race, and cultural race.99 This
entire construct is predicated on the distinction between the
“black” and “white” races.100 First, “status race” uses race “as an
indicator of social status”;101 that is, “to be white is to have a
higher status and to be black is to have lower status.”102 Second,
“formal race” is a construction that purports to be viewpoint
neutral and reflects only the color of one’s skin.103 Third,
“historical-race . . . assign[s] substance to racial categories,”104
and refers to the history of “past and continuing racial
subordination.”105 Finally, “cultural race” identifies “black” with
“African-American culture, community, and consciousness.”106
When the Court invokes strict scrutiny, it contemplates historical
race.107 The Court references these different constructs of race to
support its opinion depending on the issue at hand.108
Using the term “Yankee race” to connote race likely does not
fall into any identified constructs. It seems obvious that one
cannot invoke the formal race category to describe Yankees; the
word does not suggest any color of skin, nor does it seek to define
a group of people by the color of their skin. Moreover, it cannot
be seriously maintained that Yankee race exemplifies historical
classification is a non-suspect class).
99. Neil Gotanda, A Critique of “Our Constitution is Color-Blind,” 44 STAN.
L. REV. 1, 3-4 (1991); see also Brophy & Ghosh, supra note 15, at 81 (noting
three different ways in which the Court discusses race based on Gotanda’s
theory).
100. See BREST ET AL., supra note 93, at 835-38 (discussing the social and
legal construction of race regarding “black” and “white” races).
101. Gotanda, supra note 99, at 3-4.
102. BREST ET AL., supra note 93, at 835.
103. See id.
104. Gotanda, supra note 99, at 4.
105. Id.
106. Id.
107. See id.
108. BREST ET AL., supra note 93, at 836.
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race as a result of “past and continuing racial subordination.”109
In fact, some may argue that being Southern subjects one to
discrimination more frequently than being a Yankee.110
One could argue that using the word “Yankee” as Mr. Ingram
has done implicates status race and cultural race. Mr. Ingram
has suggested he believes that Northerners are a lower class of
people.111 Under the status-race category, the mere fact that
individuals hail from northern states makes them socially
inferior as a class in Mr. Ingram’s view. Furthermore, one could
argue that the word Yankee identifies certain cultural and
community values such as those implied by traditional negative
stereotypes of people from the Northeast, thus stigmatizing
Yankees under the cultural race construct.
Discussion about the meaning of race has predominantly
focused on the “black/white” distinction. Racial classifications
encompass more than just the African-American and Caucasian
races.112 However, viewing people from the Northeast as a race
requires deviating from the conception of race that has persisted
throughout the Court’s jurisprudence. The Court likely would
not be willing to define race according to geographic origin. This
interpretation would exponentially expand the meaning of racial
classifications under the Equal Protection Clause.
That being said, in the context of interpreting a
Reconstruction era statute, the Court has recognized a broader
meaning of race.113 Section 1981 grants all people in the United
States the same rights as those “enjoyed by white citizens,”114
109. BREST ET AL., supra note 93, at 836; see also Ajay K. Mehrotra,
Envisioning the Modern American Fiscal State: Progressive-Era Economists and
the Intellectual Foundation of the U.S. Income Tax, 52 UCLA L. REV. 1793
(2005) (discussing the effect of influential, wealthy individuals and states in the
Northeast on the shift of U.S. tax policy).
110. See John Cornyn, Restoring Our Broken Judicial Confirmation Process,
8 TEX. REV. L. & POL. 1, 3 (2003) (Judicial nominees have “their good names and
reputations . . . smeared through unfair stereotypes about Southerners and
false and cruel charges of racism or racial insensitivity.”).
111. See Ingram, supra note 8, at 237 (referring to dastardly Yankees as
“carpetbaggers” and “scalawags”).
112. See Korematsu v. United States, 323 U.S. 214, 218-19 (1944)
(discussing racial classifications against Japanese-Americans).
113. See St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 609-13 (1987).
114. 42 U.S.C. § 1981(a) (2000).
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and has been interpreted to prohibit “all ‘racial’ discrimination in
the making of private as well as public contracts.”115 Violation of
Section 1981 requires proof of intentional discrimination based
solely on race.116
The statute does not protect against
discrimination based on national origin.117
In Saint Francis College v. Al-Khazraji, the Court fleshed out
the meaning of racial discrimination in the context of this
statute,118 unanimously holding that the concept of race at the
time the statute was enacted should apply. After a thorough
discussion of nineteenth century sources, the Court concluded
that the conventional understanding of race at the time extended
far beyond our modern classifications.119 According to the Court,
groups including Gypsies, Swedes, Germans, Hebrews, Arabs,
and Chinese were all considered separate races.120 The Court
held “at a minimum, [Section 1981] reaches discrimination
against an individual because he or she is genetically part of an
ethnically and physiognomically distinctive sub-grouping of homo
However, the Court also made clear that
sapiens.”121
distinguishing physical characteristics are not required for
protection.122
The relevant inquiry is whether a more expansive
construction of race recognized by the Court under Section 1981
should apply to the Equal Protection Clause, a provision that,
unlike the statute, notably excludes any reference to race. The
115. St. Francis Coll., 481 U.S. at 609; see also Olmstead v. L.C. ex rel
Zimring, 527 U.S. 581, 589 n.1 (1999); Runyon v. McCrary, 427 U.S. 160, 168
(1976).
116. St. Francis Coll., 481 U.S. at 613 (Kennedy, J., concurring); see also
Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d Cir. 2001) (requirements for a §
1981 violation).
117. See St. Francis Coll., 481 U.S. at 613; see also, e.g., Zar v. S.D. Bd. of
Exam’rs of Psychologists, 976 F.2d 459, 467 (8th Cir. 1992); Chaiffetz v.
Robertson Research Holding, Ltd., 798 F.2d 731, 735 (5th Cir. 1986).
118. St. Francis Coll., 481 U.S. at 610-13.
119. Id. at 611 (identifying the three major human races under modern
constructions as Caucasoid, Mongoloid, and Negroid).
120. Id. at 611-12; see also United States v. Nelson, 277 F.3d 164, 175-80
(2d Cir. 2000) (discussing the Jewish race).
121. St. Francis Coll., 481 U.S. at 613 (emphasis in original) (internal
quotations omitted).
122. Id.
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Court in Saint Francis College applied Congress’s understanding
at the time regarding the particular statute. Thus, the logical
parallel is whether the Court should interpret the Equal
Protection Clause in accordance with Congress’s understanding
when it enacted the Fourteenth Amendment. As mentioned, the
Court has not allowed the original purpose of the Fourteenth
Amendment—to eradicate racial discrimination against AfricanAmericans—to constrain its application of the provision to
protect other classes of persons.123 The Court’s reasoning in
Saint Francis College124 coupled with its development of the
Equal Protection jurisprudence suggests that the Court’s
analysis in the former should not be juxtaposed onto the latter.125
An alternative conclusion would result in the Court invoking
Congress’s original intent regarding a statute, albeit one closely
related in history, to override Congressional intent in enacting
the Fourteenth Amendment. Even if the Court were willing to
make this step, which seems unlikely, Yankees would not
automatically fall within the class of protected races. Because of
the ethnic diversity in the Northeast in the mid-1800s, Yankees
cannot be considered a monolithic race.
Professors Brophy and Ghosh also argue that restrictive
covenants discriminating based on geographic origin, in
particular Yankees, could not survive equal protection analysis
even if one considers the restriction facially neutral.126 They
argue that because African-Americans comprise a large portion of
the recently migrated population to the South, this type of
restrictive covenant would disparately impact AfricanAmericans.127 While it is far from clear that these are factually
123. E.g., Milliken v. Bradley, 418 U.S. 717 (1974) and Korematsu v. United
States, 323 U.S. 214 (1944).
124. St. Francis Coll., 481 U.S. at 613 (Court examined the history of the
statute and Congress’s intent at the time it was enacted.).
125. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (applying the
Equal Protection Clause to alienage classifications); Reed v. Reed, 404 U.S. 71,
74 (1971) (applying the Equal Protection Clause to gender discrimination); Levy
v. Louisiana, 391 U.S. 68, 70 (1968) (protecting non-marital children under
Equal Protection clause).
126. See Brophy & Ghosh, supra note 15, at 83-84.
127. Id.
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accurate assertions,128 a disparate impact is not shown merely
because a larger actual number is affected; rather, impact must
be disproportionate with respect to other races. The Supreme
Court has held that a facially neutral law is not unconstitutional
“simply because it may affect a greater proportion of one race
than of another.”129
A successful Equal Protection challenge depends on whether
the disparate impact on one race is coupled with a discriminatory
purpose.130
A disparate impact challenge to this type of
restriction likely would not be as simple or successful as
Professors Brophy and Ghosh suggest.131 Mr. Ingram has
intimated his distaste for Yankees,132 but the connection between
disliking Yankees and purposeful discrimination against the
African-Americans affected is attenuated. It is axiomatic that
the discriminatory purpose be directed at the particular race that
suffers from a disparate impact. Thus, the discriminatory
purpose would have to be primarily directed toward
Northeastern African-Americans, rather than just all individuals
from the Northeast. The deed itself states Mr. Ingram’s lack of
discriminatory purpose against African-Americans, so long as
they are Southern, and does not distinguish between traditional
racial classifications for individuals living north of the MasonDixon line.133 It seems disingenuous to stretch Mr. Ingram’s
discrimination based on geographic origin in order to establish a
discriminatory purpose based on racial animus. Regardless of
how distasteful private bias may be, the Constitution prohibits
128. See id. at 83-84 n.121-26. Mr. Ingram’s deed does not address any
segment of the United States population besides those living in the Northeast.
The statement in the article that “record numbers of black Americans are
migrating South from other parts of the United States” does not indicate that a
large portion of those individuals are migrating from the Northeast, nor does it
suggest that because there are a lot of people moving to the South, AfricanAmericans from the North would be disproportionately affected vis-á-vis anyone
else moving to the South from the Northeast.
129. Washington v. Davis, 426 U.S. 229, 242 (1976).
130. See Brophy & Ghosh, supra note 15, at 84 (recognizing the need for
both disparate impact and discriminatory purpose).
131. See id. at 83-84.
132. See Smith, Plantation Owner Bars All “Yankees”, supra note 29, at 3M
(quoting Mr. Ingram as stating, “Yankees are ‘worse than fire ants’).
133. See Deed Restrictions, supra note 8, at 236.
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only racially discriminatory state action. Its purpose is not to
eradicate all forms of personal prejudice.
The geographic denotation trumps the use of the word race in
Mr. Ingram’s deed. It does not likely fit with any of the Supreme
Court’s conceptions of race, articulated by Neil Gotanda,134 and
argued for by Professors Brophy and Ghosh.135 The purpose of
the restriction directly highlights the different lifestyles that
predominate in the Southern states as opposed to the
Northeastern states, as evidenced by the desired uses for Delta
Plantation. Irrespective of the apparent animus toward a
particular group of people, this classification likely does not rise
to the level of strict scrutiny because of an impermissible race
classification.
Beyond traditional race classifications, the Court has not
been overly zealous in expanding the protected classifications
under the Equal Protection Clause. “The Constitution is violated
when government, state or federal, invidiously classifies
similarly situated people on the basis of the immutable
characteristics . . . .”136 An immutable characteristic, such as
race or gender,137 is one that “its possessors are powerless to
escape or set aside.”138 The Court, however, has often failed to
protect classes when an argument could be maintained that they
have no ability to change the particular characteristic at issue.139
134. See Gotanda, supra note 99, at 3-4.
135. See Brophy & Ghosh, supra note 15, at 81-82.
136. Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 477
(1981) (Stewart, J., concurring); see also Caban v. Mohammed, 441 U.S. 380,
398 (1979) (Stewart, J., dissenting) (“Gender, like race, is a highly visible and
immutable characteristic.”).
137. See Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (concluding sex
and race are both immutable characteristics).
138. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 360 (1978) (Brennan,
White, Marshall, & Blackmun, J.J., concurring in part & dissenting in part).
139. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 442
(1984) (holding that mental retardation is not a suspect class); Gregory v.
Ashcroft, 501 U.S. 452, 470 (1991) (“This Court has said repeatedly that age is
not a suspect classification under the Equal Protection Clause.”); see also
SULLIVAN & GUNTHER, supra note 42, at 710 (noting the Court has never
officially accorded heightened scrutiny to classification based on sexual
orientation); BREST ET AL., supra note 93, at 1119 (noting that it can be argued
that there are numerous bases of classification such as age, height, intelligence,
appearance, and sexual orientation that should be treated as suspect).
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For example, the Court declined to hold the mentally disabled as
a suspect class of persons.140 Thus, the Court does not seem
willing to accord suspect classification status simply because of a
particular characteristic an individual cannot change.
It seems unlikely that one could convince a court to
invalidate a restrictive covenant that discriminates based on
geographic regions. Anyone who moved into that region would
take on the characteristic. But state residency could never be an
immutable characteristic, as an individual could easily escape or
set aside this particular characteristic by moving to another
state. Admittedly, individuals cannot change the geographic
region of their birth. Mr. Ingram, however, provides an easy
mechanism for escaping this immutability.
He allows an
individual the opportunity to take an oath of Southern loyalty
that would instantly absolve him of the undesired
characteristic.141 Taking a Southern oath of loyalty has no legal
implications; it is simply a cost imposed on acquiring the desired
benefit of owning a piece of property. Unlike a Yankee, an
African-American, Caucasian, or Asian does not have the ability
to recite a few words and dispense of the immutable
characteristics that identify him as a member of that race. Thus,
being a Yankee should not amount to an immutable
characteristic as that term has been incorporated throughout the
Court’s jurisprudence; to hold otherwise would pervert the
meaning of protected classes beyond recognition. Furthermore, it
is not at all clear that there would be a disparate impact on any
class. If one can swear away the characteristic on which the
discrimination is premised, the question arises whether an
identifiable class exists.
2. Restrictions on Geographic Origin Survive Rational Basis
Analysis
Accordingly, the proper level of judicial scrutiny is not the
strict scrutiny applied to protect certain classes of persons.
Because Yankee is not an impermissible racial classification and
140. See City of Cleburne, 473 U.S. at 442.
141. See Brophy & Ghosh, supra note 15, at 60 (individual can take
Southern oath of loyalty to dispense with Yankee characteristic).
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does not involve a protected class of persons, the restrictive
covenant should be evaluated under the minimum level of
scrutiny. The rational basis test requires only a legitimate
government purpose and that the ends desired be rationally
related to the means employed.142 The rational basis test,
faithfully applied, allows most government action to pass
constitutional muster.143 Restrictive covenants that discriminate
based on geographic origin would likely survive rational basis
scrutiny, because the deed restrictions aim to preserve
traditional Southern cultural norms, which is a legitimate
government purpose.
Racial stereotypes unfairly promote the perception that one
has certain character traits that ultimately derive from the color
of his or her skin. The same cannot be said of all generalizations
and stereotypes used to describe different geographic regions.
There are significant differences in the culture and lifestyle of
various geographic regions. Some areas are much more agrarian,
while others more metropolitan. For example, because the
Northeast is a more densely populated region, the public relies
more heavily on public transportation than in the South.144
Moreover, different regions provide varied access to cultural
and recreational activities. For example, people living in the
New York area have the opportunity to take advantage of
numerous museums, theatres, and galleries. Alternatively, for
many people living in the South, the readily available cultural
opportunities may include golfing, hunting, fishing, camping, and
the like. The diverse backgrounds of individuals encourage a
different appreciation for certain lifestyles and recreational
142. See Williamson v. Lee Optical Co., 348 U.S. 483, 488 (1955)
(articulating rational basis test and broad deferential judicial review).
143. See City of Cleburne, 473 U.S. at 439-40.
144. See U.S. Dep’t. of Labor, Bureau of Statistics, Expenditures on Public
Transportation, ISSUES IN LABOR STATISTICS, Sept. 1999, available at
http://www.bls.gov/opub/ils/pdf/opbils34.pdf (last visited Mar. 22, 2008).
According to the Department of Labor, Northeastern households spend more
than two times the amount spent by Southern consumers on public
transportation. There is greater use of public transportation in the Northeast
than in the South for both intra- and inter-city transportation. The greater use
of public transportation “reflects the more extensive public transportation
network that exists in the more densely populated Northeast region.”
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pastimes. While these are, of course, overbroad generalizations
of regional characteristics, and certainly debate exists about their
accuracy, a naked preference for one over the other does not
mean that such purpose is illegitimate or irrational.
The ends desired by a restrictive covenant that discriminates
against Yankees include: preservation of Southern values (which
does not equate to a desire to return to the abhorrent practices of
the antebellum South); continuation of a more rural and less
congested way of life; prevention of over-development;
preservation of open spaces and of recreational activities
important to the region; and finally, the preservation of
American, as opposed to simply Southern, history. These would
likely be considered legitimate ends for land use restrictions. As
the Supreme Court has stated, “[The police power] is ample to lay
out zones where family values, youth values, and the blessings of
quiet seclusion and clean air make the area a sanctuary for
Because the state has power to define these
people.”145
amorphous concepts, courts should not interpret the legitimate
exercise of them too narrowly. Mr. Ingram has decided that, in
order to make Delta Plantation a sanctuary, it is necessary to
preserve a particular set of values. The means chosen to achieve
this end prevents a certain class of people, those he views as
antithetical to his goal, from owning or occupying this property.
The Constitution should not prohibit this type of action.
One argument may stand in the wings for an individual who
challenges a restrictive covenant that discriminates based on
geographic origin.
Recently, the Court has employed a
heightened level of scrutiny under the auspices of the rational
basis test.146 According to the Court, “some objectives, such as ‘a
bare . . . desire to harm a politically unpopular group,’ are not
legitimate state interests . . . . When a law exhibits such a desire
to harm a politically unpopular group, we have applied a more
searching form of rational basis review . . . .”147 The relationship
145. Vill. of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974).
146. See City of Cleburne, 473 U.S. at 446 (recognizing that a refusal to hold
a class suspect does not leave its members unprotected from invidious
discrimination).
147. Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O’Connor, J., concurring)
(internal citations omitted).
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between the means and the ends must not be so “attenuated as to
render the [classification] arbitrary or irrational.”148
Using this level of scrutiny, an argument exists that
discrimination based on geographic origin is nothing more than
invidious discrimination. That being said, it seems highly
unlikely that Yankees could successfully be categorized as a
politically unpopular group of people under the Constitution. In
considering the entire country as the constituency of the
Constitution, there is no general societal animus toward people
from the Northeast so as to fairly characterize them as politically
unpopular. While, on a much more localized and personal level,
people may dislike others based on geographic origin, this is not
so generalized as to necessitate federal constitutional protection.
To identify Yankees as a politically unpopular group detracts
from the legitimacy of the Court’s protection of other groups who
do suffer such discrimination in our society.149
Regardless of how one personally feels about private
restrictive covenants that discriminate based on geographic
origin, the Equal Protection Clause of the Fourteenth
Amendment should not bar enforcement. Finding state action
through judicial enforcement of this type of restrictive covenant
would pervert the Constitution even further than the Court did
in Shelley. Accordingly, the inquiry should end there because the
Constitution does not reach purely private discrimination.
However, even if the state action doctrine encompasses such
private action, the restrictive covenant does not discriminate
against a protected class of persons. Finally, it would be difficult
to argue that restrictions against Yankees represent the
invidious discrimination that the Court has disallowed even
under rational basis scrutiny. The analysis under the Equal
Protection Clause inevitably leads to the conclusion that these
restrictive covenants do not run afoul of the Constitution.
148. City of Cleburne, 473 U.S. at 446.
149. See Lawrence, 539 U.S. at 580 (O’Connor, J., concurring); Romer v.
Evans, 517 U.S. 620, 635(1996) (“We must conclude that Amendment 2
classifies homosexuals not to further a proper legislative end but to make them
unequal to everyone else.”); City of Cleburne, 473 U.S. at 446.
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C. The Right to Travel
Although the Constitution does not expressly speak of a right
to travel, the Court has held that it is a principle fundamental to
the concept of our country.150 The Privileges and Immunities
Clause of the Fourteenth Amendment provides the textual home
for its protection.151 This right includes several components, the
most relevant being (1) the right of a citizen of one state “to be
treated as a welcome visitor rather than an unfriendly alien
when temporarily present in the second State, and, [(2)] for those
travelers who elect to become permanent residents, the right to
be treated like other citizens of that State.”152 Although the right
to travel is not absolute, it does protect against “discrimination
against citizens of other States where there is no substantial
reason for the discrimination beyond the mere fact that they are
citizens of other States.”153
Restrictive covenants do not limit an individual’s
constitutional right to travel. The privilege of buying property in
the state, the only thing this real property deed implicates, is not
restricted by these covenants. These covenants seek only to
prevent an individual from purchasing or occupying a particular
piece of property. They do not infringe upon this fundamental
right any more than upholding a restrictive covenant that
requires a minimum lot size or one that sets a floor on the
requisite amount of square footage. All citizens within a state do
not enjoy the right to buy any piece of property they choose;154
thus, interstate travelers do not enjoy such a right either.
150. See United States v. Guest, 383 U.S. 745, 757 (1966) (stating that
constitutional right to travel is “firmly established and repeatedly recognized”).
151. See Saenz v. Roe, 526 U.S. 489, 503 (1999) (noting that there “has
always been common ground” that the Privileges and Immunities Clause
includes the right of a citizen of one state to be treated as a citizen of another
state upon permanent relocation).
152. Id. at 500 (one component of the fundamental right is “the right . . . to
enter and to leave another State”).
153. Id. at 502 (quoting Toomer v. Witsell, 334 U.S. 385, 396 (1948)).
154. See Craig v. Boren, 429 U.S. 190, 217 (1976) (Burger, C.J., dissenting)
(arguing housing does not qualify as a fundamental right) and Lindsey v.
Normet, 405 U.S. 56, 74 (1972) (declaring, “[w]e are unable to perceive in [the
Constitution] any constitutional guarantee of access to dwellings of a particular
quality”).
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Moreover, these restrictive covenants do not significantly limit a
Yankee’s right to establish residency in the state—only the
ability to establish residency on Delta Plantation.
Additionally, Professors Brophy and Ghosh assert that, in
conjunction with the right to travel, these restrictive covenants
violate the Dormant Commerce Clause because they restrict
interstate commerce.155 Even if one finds state action through
the judicial enforcement of these covenants, the connection
between the Commerce Clause and the purchase and sale of real
property is extremely attenuated. If state laws regarding the
purchase and sale of real property burden Congress’s ability to
regulate interstate commerce, then essentially all state property
law could be held unconstitutional. The Court in recent years
has exhibited an unwillingness to interpret the commerce power
so expansively.156
IV. THE FAIR HOUSING ACT
Finally, Professors Brophy and Ghosh believe that the Fair
Housing Act bars enforcement of these covenants, even in the
absence of state action.157 Using its power under the Commerce
Clause, Congress prohibited private discrimination in the sale or
rental of housing, which includes vacant land, based on race,
color, ethnicity, religion, sex, familial status, or national origin.158
Unlike the Constitution, this Act reaches purely private conduct
and makes it unlawful to discriminate against one of these
protected classes.159
Mr. Ingram’s restrictive covenant likely does not violate the
Fair Housing Act, simply because the statute says nothing about
this form of discrimination.
As previously discussed, a
classification based on geographic origin does not constitute an
155. See Brophy & Ghosh, supra note 15, at 86-87.
156. See United States v. Morrison, 529 U.S. 598, 613 (2000) and United
States v. Lopez, 514 U.S. 549, 568 (1995).
157. See Brophy & Ghosh, supra note 15, at 88.
158. Fair Housing Act, 42 U.S.C. § 3604 (2000).
159. See United States v. Henshaw Bros., 401 F. Supp. 399, 402 (E.D. Va.
1974) (Fair Housing Act enacted to prohibit private and public discrimination
regarding the sale or rental of real property).
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impermissible racial classification.
An analysis of racial
discrimination under the Fair Housing Act mirrors the analysis
above under the Equal Protection Clause. These restrictive
covenants, however, potentially implicate the protections
afforded those based on national origin.
A court likely would not interpret these restrictive covenants
as violating the prohibition against discrimination based on
national origin. The Court has defined the term national origin
as “the country where a person was born, or, more broadly, the
country from which his or her ancestors came.”160 For example,
under the Fair Housing Act, courts have considered national
origin where a plaintiff was of Irish origin,161 and also where the
defendants used the word “Korean” to describe an apartment
building.162 A court also determined that use of the word “Asian”
clearly refers to a racial group rather than signifying national
origin.163 Thus, national origin is limited to the invocation of a
specific country.
By contrast, a specific geographic region within the United
States necessarily cannot equal national origin as defined by the
Supreme Court.
The first sentence of the Fourteenth
Amendment establishes the national origin for those born or
naturalized in this country.164 The Amendment states “[a]ll
persons born or naturalized in the United States . . . are citizens
of the United States,”165 precluding the argument that geographic
origin may serve as a proxy for national origin. Accordingly,
restrictive covenants that discriminate based on geographic
origin do not fall within the universe of this category of
protection under the Fair Housing Act. Thus, the Fair Housing
Act does not provide a statutory basis for invalidating these
160. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973).
161. See Murphy v. 253 Garth Tenants Corp., 579 F. Supp. 1150, 1154
(S.D.N.Y. 1983) (the fact that plaintiff was of Irish origin established prima
facie case of discrimination under Fair Housing Act).
162. See Hous. Rights Ctr. v. Donald Sterling Corp., 274 F. Supp. 2d 1129,
1137-38 (C.D. Ca. 2003) (ordinary reader would naturally understand that use
of the word “Korean” in the name of the building refers to a preference for a
particular group of people).
163. See id. at 1138.
164. U.S. CONST. amend. XIV, § 1.
165. Id.
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restrictive covenants.
V. SOCIAL UNDESIRABILITY
While the Constitution and the Fair Housing Act do not
proscribe enforcement of these restrictive covenants based on
geographic origin, deeds like Mr. Ingram’s are nonetheless
socially undesirable and society should not encourage their use.
This type of covenant precludes integration both of individuals
and of cultural values. It has dangerous social consequences by
unequivocally stating that certain individuals are not worthy of
owning or occupying a particular piece of land simply because of
their geographic origin.
Owning property has often been
considered crucial to economic independence, and a “necessary
precondition of political independence and expression.”166 Thus,
these covenants prevent individuals from fully attaining
economic and political independence. Moreover, these restrictive
covenants promote “‘a gang way of looking at life, and an
institutionalization of turf,’”167 values that conflict with an
increasingly mobile and culturally integrated society.
Restrictive covenants that discriminate against Yankees may
appear at first blush to perpetuate negative stereotypes against
Northeasterners. They also have the opposite effect of bolstering
discrimination against Southerners. Society has stereotyped
those living in rural areas as uneducated and unsophisticated.168
Words used to describe these individuals include cracker,
hillbilly, redneck, hick, and white trash.169 Ironically, or more
likely not, these same words are often used to describe
Southerners, intimating that being Southern equals membership
in a lower caste. In fact, the South has “borne a disproportionate
share of the impact of ruralism and rural sterotyping.”170 By
166. William J. Brennan, Jr., The Constitution of the United States:
Contemporary Ratification, 27 S. TEX. L. REV. 433, 439 (1986).
167. David J. Kennedy, Residential Associations as State Actors: Regulating
the Impact of Gated Communities on Nonmembers, 105 YALE L.J. 761, 778
(1995) (quoting urban sociologist Jane Jacobs).
168. See Bassett, supra note 31, at 947-48.
169. See Debra Lyn Bassett, Ruralism, 88 IOWA L. REV. 273, 285 (2002).
170. Id. at 294.
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preventing the integration of communities through use of these
restrictive covenants, these stereotypes about Southerners
remain undisturbed. Individuals should not actively seek to
perpetuate this type of private discrimination by accepting or
entering into land use restrictions that effectuate the same
purpose.
VI. CONCLUSION
Irrespective of the significant social costs they impose, a
thorough analysis of restrictive covenants that discriminate
based on geographic origin reveals that the current state of the
law does not preclude their enforcement. Because state action
does not exist, private restrictive covenants do not run afoul of
the United States Constitution. Furthermore, even if state
action could be found, these covenants neither rely on an
impermissible racial classification nor discriminate against a
suspect class of people. Additionally, they do not violate an
individual’s right to travel, nor do they encroach on Congress’s
ability to regulate interstate commerce.
Finally, absent
Congressional action to amend the law, this type of restrictive
covenant does not violate the Fair Housing Act.
Writing this article has reminded me of the tongue-in-cheek
acronym, “Containment Area for Relocated Yankees,” used to
describe the city of Cary, North Carolina, located in the heart of
the Research Triangle and home to many transplants from the
northern states. While of course the state could not legally force
all Northerners who migrate to North Carolina to live in this
city, this article has established that the Constitution and the
Fair Housing Act do not prohibit the use of private restrictive
covenants that implement land use restrictions that contain, or
more correctly exclude, Yankees from certain areas.
701